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Dr. Lightfoot observes, that by their own account they were far too favourable in their proceedings on capital judgments". And some of the rules they have laid down must have made it not a little difficult to convict a criminal a. Notwithstanding, there is but too much reason to think that they were often prevented by the Roman governors ",
z Vol. 2. p. 248. et 612.
Particularly the premonition required. Maimon. Halach. Sanhed. c. 11, 12. et 18. §. 5, 6, 7. in Seld. de Syned. I. 2. C. 13. §. 2. I must own it seems not a little incredible. Even Selden himself, in the title of this paragraph says, Mirandum, de præmonitione actionibus capitalibus, eisque in quibus verberum poenæ usus necessaria; seu de juris aut facti ignorantia præsumpta. Vid. Cocceii Duo Tituli Talmudici, p. 41, pr. et 43, fin.
b Jam vero scimus sub Romanis permissum esse Judæis Hierosolymis synedryum magnum, eique ibi licuisse in loco consueto, seu Liskath Hagazith, judicia etiam capitalia exercere ; quod ex supra allatis manifestum est. Cum vero sub annum ante templi excidium quadragesimum, ob sicariorum frequentiam, qui sæpius præsidis favore aliterve tuti, etiam synedrii judicio proculdubio subinde eripiebantur, adeo ut nec homicidia compescere illud posset, nec cædis diutius reos morte plectere, quod quidam ex jure avito atque hactenus sibi relicto (utcunque sic violato) in ejusce munere et officio erat cum synedriis cæteris ferme commune; visum est e loco judiciis hujusmodi adeo proprio ut alibi rite exerceri ab ipsis nequirent, migrare locum in alium, ibique sedes ponere, ubi ex ipsa sessione manifestum redderetur tum homicidas se in jus vocare nolle, quia plane frustra fieret, tum pudere se in loco judiciis capitalibus ita proprio sedes habere, cum tot homines rei capitalis damnandi, ultimoqne afficiendi supplicio, potestatem suam ac sententiam quotidie eluderent. Tametsi igitur dominantium libido, et victorum tyrannis in causa erat homicidia sæpe nimis impune intra synedrii jurisdictionem ac imperium committerentur, unde evenit ut migraret illud e loco sibi consueto, alibique intra urbem diu judicia exerceret; id non accipiendum est perinde ac si decreto aliquo seu jussu principali ita pulsum esset, aut judiciorum capitalium potestas ei fuisset erepta, sed
who, for the sake of money, took offenders out of their hands; it being always in the governor's power to stop their proceedings, and call the cause before himself. And thus the learned Selden understands those words of the Chaldee paraphrast in Psalm Ixix. A wicked king hath made me to remove. For the paraphrast interprets the Psalm of the removal of the great council, or sanhedrim ; and making the sanhedrim to speak the words of the Psalm, adds at the end of the second verse, A wicked king or tyrant hath made me to remove c; i. e. Pilate, the Roman governor, by his stopping the course of justice, and protecting of murderers, hath so increased their number, that it is utterly in vain to attempt to punish them. For which reason the sanhedrim chose rather to leave the place of judgment, than to sit there, and not be able to discharge their duty. They often returned to their place under better governors, or when they had reason to think the governors would not interfere. But from this time robbers and murderers gained such a head, and became so powerful, that they were no more able to do aught against them; and it is expressly said, that to sit in judgment upon murderers they never did return
de migratione tantum spontanea, qualem memo
moravimus. Seld. de Syned. I. 2. C. 15. §. 10.
· Seld. de Syn. 1. 2. c. 15. § 10, med. Vid. et §. 8.
d Gloss. ad tit. Chethuboth, fol. 30. 1. in Lightfoot, vol. 2. p. 613
An argument of another nature, rendering it highly pro
bable that the Jewish magistrates under the Romans had the execution of their own laws in capital cases.
ANOTHER argument, which, I think, has no small weight in it, is this: if all criminal jurisdiction, or if the cognisance only of all capital causes f, were in the governor of every province, so that no person could be adjudged to death but by him, what an insupportable addition would this be to the other necessary parts of government? what man could possibly sustain the weight of affairs in any one province ? which way could Vitellius in particular have managed the business of Syria, together with that of Judæa annexed to it, when he sent Pilate to give an account of his conduct to Tiberius 5, the countries of Trachonitis, Gaulonitis, and Batanæa, being at the same time added to the province by the death of Philip the tetrarch b ? would his whole time have sufficed for the hearing of causes only? It is true he placed his friend Marcellus in the room of Pilate i But if the maxim of the civil law, Merum imperium non posse transire “, that the power of judging and punishing criminals could not be delegated were of force, and took place at this time, Marcellus could lend him no assistance in this part of his office. Vitellius could not confer on him the power of determining criminal causes; yet we very well know there were other pressing affairs, in most provinces not a few, which so engrossed the time of the governors, that they could afford but little, comparatively, for the hearing of ordinary criminals. Vitellius, during the time we have mentioned, marched an army against Aretas king of Arabia !, went also to the Euphrates, had an interview with Artabanus king of Parthia, and concluded a peace with him m.
e I have already observed, that according to the arguments of those on the other side of the question, taken from the civil law, all criminal jurisdiction must have been in the governor, and he could delegate no part of it to any other. Vid. sect. 2.
f The gentlemen on the other side of the question take it indeed for granted, that all but capital causes might be determined by the Jewish magistrates; but they give no reason for this division of imperium, and according to their principles it is impossible they should. & Jos. Antiq. 1. 18. c. 4. §. 2.
b Ibid. c. 5. §. ult. i Ibid. c. 4. §. 2.
If it be said, that after the time of Antoninus Caracalla, when the Roman law was spread through the whole empire, and not only the trial of capital causes, but, what is much more, all criminal jurisdiction, was certainly in the governor of every province, we find not that the business was so great, but many were well able to undergo it; the answer is plain: the provinces were then lessened in proportion to the increase of business, that, which was one province at the time we are speaking of, having been divided into many after the law passed by Antoninus n.
k L. I.
§. 1. ff. de Offic. ejus cui mand. est Jurisd. | Jos. Antiq. I. 18. c. 6. §. 3.
m Ibid. c. 5. §. 5. Sueton. in Calig. c. 14. §. 5. Dio, l. 59. p. 661. Vid. et Suèt. in Vitel. c. 2. §. 7. Lard. Cred. vol. 1. p. 171, 187, 188.
+ Dio, l. 53. p. 504, A. 1. 8, 9, 10. Notit. Imper. apud Panvinium et Fred. Spanheim. The province of Syria that was under Vitellius, of which we have been speaking, was in Constantine's
SECT. XIV. Arguments taken from the sacred writings to prove the
same thing I SHOULD not have given myself the trouble to enter thus deeply into the question before me, had I not been fully persuaded that what I have been maintaining is the real sense of the writers of the New Testament, and that it cannot but appear to any impartial man, who reads the Gospels and the History of the Acts without prejudice, that the most obvious, easy, and natural construction of the several passages relating hereto, is, that the Jewish magistrates had the power of trying capital causes, and inflicting death.
It is well known that the Jewish courts which sat upon life and death were their councils, the great council which sat in the room Gazith at Jeru. salem, composed of seventy-one members; and the lesser councils in other cities, composed of twentythree members. These are often mentioned in the New Testament. The question is, whether they are spoken of in such a manner as implies that they still retained the power of punishing criminals with death, or in such a manner as imports that they had now lost this power?
It cannot be denied, that in the Acts of the Apostles there is one very plain instance of the council's sitting and hearing witnesses, of the prisoner's defence, and of his execution, and that the execution was performed according to the direction of the
divided into thirteen provinces. Vid. Panvin. Imper. Rom. vol. 2. p. 254. 256.
o Vid. Seld. de Syned.