cation of the learned Selden, that the Talmudical expressions mentioned in the beginning of this chapter, when compared, will be found very exactly to agree with the History of Josephus. According to Selden the Talmudists say, "That capital judgments were" (not wholly taken away from them, as some have understood the expression, but) "greatly interrupted for forty years before the destruction of the temple." Had they been taken away by Judæa's being made a Roman province, they must have fixed the date much earlier, and said they had been taken away sixty years before the destruction mentioned. When they say forty years, it is evident the time fixed falls under the government of Pontius Pilate; and agreeably hereto Josephus speaks of him as the first Roman governor who broke through the Jewish laws h. And Agrippa in Philo expressly tells us, he was guilty of corruption, the receiving of bribes to pervert justice being the first laid to his charge, among several other the greatest crimes of which a governor can be accused. Of Cuspius Fadus, and Tiberius Alexander, the two first governors sent by the emperor Claudius, Josephus says that they acted nothing contrary to the Jewish customs. Cumanus, who succeeded, took money of the Samaritans to protect those who had murdered the Galilæans'. Felix, being reproved by Jonathan the high priest, for his injustice in the administration of the Jewish affairs, employed robbers to murder him, who being countenanced and encouraged by this wicked governor for the service they had herein done him, numberless murders were committed by them afterwards with impunity m. Albinus dismissed all malefactors for money, and Gessius Florus was sharer with such in their

unlawful gains". From this account of Josephus, I think, we may easily see the true reason of the interruption given to the proceedings of the Jewish magistrates in capital causes for forty years before the destruction of the temple. It was owing to the corruption and maladministration of several of the Roman governors who took bribes, or shared the plunder, in order to protect criminals from justice.

The Talmudists, and other Jewish writers, tell us, that the great council sat in a room of the temple called Gazith P; that in the trial of capital causes they were obliged to sit in this room, and could condemn no one to death in any other place 9; that the lesser councils, which had the power of judging in cases of life and death, could not proceed therein, unless the great council sat in the room Gazith'. The reason of this is supposed to be, because there lying an appeal from the lesser councils to the greater one, if that, by not sitting in its proper place, was incapable of determining capital causes, the appeal was hereby prevented. And it was not permitted that the lesser councils should sit on capital judgments, unless the great council was in its proper place, and so capable of receiving appeals from them s.

It is said in the Talmud, that the great council, or sanhedrim, removed from the room Gazith forty years before the destruction of the temple; and this removing, all judicial proceedings in matters of life and death of course ceased throughout the whole country, I mean among the Jewish magistrates. This removal of the great council is represented by the Talmudists, and all the Jewish writers, as a voluntary thing "; not a thing imposed upon them by the

Sanhed. cap. 5. fol. 41. 1.

Maimon. Halach. Sanhed. c. 14. Cotzenzis Præcept. affirm. 102. in Seld. de Syned. 1. 2. c. 15. §. 6. Lightfoot, vol. 2. p. 248, fin.

Seld. ibid. §. 6, fin.

Gemara Bab. a, tit. Sanhed. c. 5. fol. 41. a. et ad tit. Sabboth, c. I. fol. 15. 1. et ad tit. Aboda zara, c. i. fol. 8. 2. Cotzenzis Præcept. affirm. 102. in Seld. ibid. §. 8.

"Gemara Bab. ad tit. Aboda zara, cap. 1. fol. 8. 2. Abrah. Zacut. Sepher Juchasin, fol. 21. I. et fol. 26. 2. in Selden. Ibid. §. 10.

authority of the Roman emperors, or enjoined them by the governors; but a matter of their own choice, which for certain reasons they judged expedient. Nor is there the least intimation given that they departed with an intention not to return; on the contrary, it is expressly said, when occasion served, they did return *. The reason that is given for this their voluntary removal is the frequency of murders, which they were not able longer to restrain by their judicial sentences. It is very certain, as Dr. Lightfoot observes, that by their own account they were far too favourable in their proceedings on capital judgments 2. And some of the rules they have laid down must have made it not a little difficult to convict a criminala. Notwithstanding, there is but too much reason to think that they were often prevented by the Roman governors b, who, for the sake of money, took offenders out of their hands; it being always in the

* Thosiphtha ad tit. Chetuboth. c. 3. fol. 30, 31. et ad tit. Aboda zara, c. I. fol. 8. 2. et ad Gemara Bab. tit. Sanhed. c. 4. fol. 37. 2. in Seld. Ibid. §. 11. Lightfoot, vol. 2. p. 613.

y Gemara Bab. tit. Aboda zara, c. 1. fol. 8. 2. Abr. Zacut. Sepher Juchasin, fol. 21. 1. in Seld. Ibid. c. 10. pr. et fin.

2 Vol. 2. p. 248. et 612.

Particularly the premonition required. Maimon. Halach. Sanhed. c. II, 12. et 18. §. 5, 6, 7. in Seld. de Syned. 1. 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 pœnæ 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, ultimoque 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 de migratione tantum spontanea, qualem memoravimus. Seld. de Syned. 1. 2. c. 15. §. 10.

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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 " 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 d.

SECT. XIII.

An argument of another nature, rendering it highly probable 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', 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

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.

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.

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, the countries of Trachonitis, Gaulonitis, and Batanæa, being at the same time added to the province by the death of Philip the tetrarch h? 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. But if the maxim of the civil law," Merum imperium non posse transire k," 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 TM.

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".

Jos. Antiq. 1. 18. c. 4. §. 2.

h Ibid. c. 5. §. ult. i Ibid. c. 4. §. 2.

L. 1. §. 1. ff. de Offic. ejus cui mand. est Jurisd.

Jos. Antiq. 1. 18. c. 6. §. 3. m Ibid. c. 5. §. 5. Sueton. in Calig. c. 14. §. 5. Dio, 1. 59. p. 661. Vid. et Suet. in Vitel. c. 2. §. 7. Lard. Cred. vol. 1. p. 171.