THE JEWISH SANHEDRIN AND CAPITAL PUNISHMENT
BECAUSE OF WHAT JOHN WROTE SOME HAVE THOUGHT
THE JEWS COULD NOT PUT PEOPLE TO DEATH
PROBABLY MORE THE TRUTH OF THE MATTER
IS HERE DISCLOSED
Fom the book "THE TRIAL AND DEATH OF JESUS"
by
Haim Cohn
Quote (with headings I have given for clarity):
CHIEF PRIESTS, ELDERS, SCRIBES, AND COUNCIL
THE SANHEDRIN COUNCIL
It was Kaiaphas, then, possibly with the high priest
emeritus Annas at his side, who presided over the council. What
was this council, how was it composed, what were its functions?
It has been suggested that there were several such
"councils" in Jerusalem at the time, all mistakenly and
indiscriminately referred to in the Jewish sources as "Sanhedrin"
and in the Gospels as the "whole council" (Mark 15:1) of chief
priests, elders, and scribes. Only one of them, it is said, and
that a political or a priestly one, would be controlled and
presided over by the high priest, and his Sadducean intimates
would form its membership. Confining the high priest to the
presidency of a purely political body, directed by him and
constituted at his pleasure, not unlike the family or privy
councils reported to have been called together time and again by
King Herod for specific consultations, would, of course, answer
the purpose, intended or not, of freeing the true and real Great
Sanhedrin of Israel of all responsibility for whatever had
happened in the case of Jesus, and placing it, as far as the Jews
were concerned, squarely on the shoulders of the high priest whom
the Romans had appointed and his personal clique. According to
this theory, the high priest and his council were charged by the
Roman governor not only with sacerdotal matters, but also,
perhaps mainly, with "native affairs;" that is, with inquiry into
local anti-Roman activities and their denunciation, and it was in
that capacity that they "delivered" Jesus into his hands.
(The last sentence is probably the true situation in the end for
the Jewish sanhedrin, as they could find no accusers to agree
that Jesus had broken their "religious" law per se. Hence they
accused Jesus of anti-Roman activities and declaring Himself as a
king, so sedition against Rome - Keith Hunt).
I see no reason to decry the character of "the whole
council" of which the evangelists tell us. There is no case for
regarding the assembly that night in the high priest's home as
some high-priestly ad hoc council in which the great majority of
chief priests, elders, and scribes was unrepresented. On the
contrary, I shall assume that what the Gospels call "the chief
priests and elders and all the council" (Matt. 25:59), or "all
the chief priests and the elders and the scribes" (Mark 14:53;
similarly Luke 22:66), was indeed the Great Sanhedrin of
Seventy-one "from which the Torah went out to all Israel," and
that no more august, representative, or authoritative body could
have foregathered there that night. That it had, indeed, been
convened by the high priest and that it had been invited into his
home are circumstances which will claim our attention in due
course.
In listing chief priests, elders, and scribes as making up
the membership of the-then-Sanhedrin, the authors of the Gospels
may have disregarded technical terminology, but, in essence, they
were not far from giving an accurate picture of its three main
groups: first, the leading priests and Levites, representing the
sacerdotal authorities; second, "senators," as they would say in
Rome, men of ancient lineage or aristocrats, into whose families
even officiating priests were allowed to marry without question,
and last, members co-opted from time to time from among the
scholars entitled to attend sessions.
Not only the moral, professional, and political impact of
the third group, but also its numerical strength, had risen
progressively with the rise of scholars in reputation and
popularity, and the corresponding decline of many of the priests
and aristocrats in moral stature and professional qualification.
So far from boycotting the council in which sat so many
factions adverse to them, the scholars (called "sages") advisedly
took part: just as the holiness of the temple was not impaired in
the estimation of the sages by the high priests who were unworthy
of officiating, so it never entered their minds to repudiate the
institution of the Sanhedrin, or to set up a rival to it in the
form of a competing court, even if they did not approve of its
composition, and even if they opposed the high priest and his
entourage. They endeavoured rather to exercise their influence
and to introduce their rulings and views even into the ritual of
the temple service and into the Sanhedrin's methods of operation.
These scholars were Pharisees, whereas among the chief
priests and elders many were Sadducees; and we have the testimony
of Josephus that the Sadducees would always vote with the
Pharisees, "because the people would not have it otherwise," as a
remarkable index of the practical influence which public opinion
exerted on the decisions of the Sanhedrin, and of the sensitivity
of priests and elders to vox populi and popular sentiment. There
can be no doubt that public opinion in Judaea and Jerusalem was
as anti-Roman as it was pro-Pharisaic, and that with the growth
of Pharisaic popularity the Sadducces lost more and more of their
positions. Not that the masses had the capacity, or interest, to
assess the respective merits or demerits of Pharisaic and
Sadducean doctrine, for if they had, they would, in all
probability, have preferred the simple and straightforward
Sadducean conception of strict and exclusive adherence to the
written word of Scripture to the vagaries and complications of
the Pharisaic oral law, about whose scope and content the
scholars were endlessly disputing among themselves, and often in
diametrical opposition to one another.
(Yes, the Pharisees were divided among themselves on "doctrines"
and teachings of the word of God, but as the writers points out
the Pharisees had the popular vote so to speak, they were the
party of the people, and the Sadducces voted or allowed the "say"
of the Pharisees to be the rule for the masses of the religious
people - Keith Hunt)
WHY THE PHARISEES WERE THE POPULAR PARTY
If the generality followed the Pharisees and accepted
Pharisaic teachings, it was because the Pharisaic scholars were
men after their own hearts: we have the evidence of such an
un-Pharisaic witness as Josephus that they were poor and did not
aspire to worldly affluence; that they were prudent and always
acted after careful deliberation and to the best of their
knowledge; that they were humble and showed respect to their
elders; and that they were pious and believed that a merciful God
would requite all good and righteous men in a better world to
come for the misery suffered on earth. But, most important of
all, the Pharisees held popular sympathy because, true Jewish
patriots that they were, they could safely be relied upon, in the
counsels of state, to pro side the required counterbalance to
potential or actual collaborators with Rome. It cannot be
gainsaid that among the Pharisaic scholars themselves there were
differences of approach and opinion in respect of Roman politics;
even from the purely theological standpoint, some, inevitably,
would bow to foreign dominion as a God-sent calamity which must
be taken to be merited and accepted with love and humility and an
unswerving faith in divine justice. Others may have seen in
heathen rule an affront to God and His chosen people and His holy
land, which could not, at any cost, be endured. However manifest
these doctrinal discords may have been, what distinguished the
Pharisaic scholars from other groups would be that in making
their decisions they would be actuated only by Jewish concerns:
they would not direct their minds to any considerations other
than those reflecting what they knew to be in the best general
Jewish interest.
In this respect, they differed from the well-to-do and
well-established, whose primary solicitude would always be for
their own vested interests; and, needless to say, from those who
- like the high priest - depended on Roman goodwill for
continuation in office or status or had to render to the Romans
account of their conduct. Popular mistrust of all sorts of
collaborators, and of all ideologies underlying collaboration,
was deeply entrenched - the spectacle of the "moral and spiritual
decadence of the once exalted "family" of the Hasmonaeans, who
had become "pure assimilationists," was still vivid enough in the
consciousness of the people to "strengthen the morale and
increase the numbers of the Pharisaic opposition." As oppression
by the Roman occupying power mounted, it was equally inevitable
that, in the course of time, the strengthened Pharisaic
opposition and its scholarly spokesmen should come to be regarded
and revered, in the public mind, as the embodiment of genuine
Jewish patriotism.
THE ROMAN ATTITUDE
AND THE WORKING OF THE HIGH PRIEST
But the popular pro-Pharisaic sentiment gives only one side
of the picture. No public opinion can avail, unless the
powers-that-be are awake and sensitive to it. The Roman governor
of Judaea, for instance, was entirely impervious, not because he
may not have been familiar with the more elementary features of
democracy, but because he in person, and the duty that he had to
perform, and all that he represented and stood for were so
incompatible and out of tune with the "native" and - to him -
wholly barbarous ideas and aspirations, and "Weltanschauung" by
and large, of a deplorably "retarded," indigenous folk that to
give ear to its uncivilized babble would be so much waste of time
and effort. It seems, however, that the position was totally
different with the high priest and, probably, also with the
Sadducean nobility. The high priest could be under no illusion as
to the opprobrium that he and his predecessors had earned among
the people by craving Roman appointments and purchasing them. He
had firsthand intelligence of the wrath and wild fury of the
people against the Romans and their garrisons, and I do not think
that he could have entertained any hopes that this attitude might
change: at any rate, he knew that it was not he who could alter
it. Our knowledge of individual high priests is not enough to
judge whether they collaborated with the Romans, if at all, by
inclination rather than out of what they regarded as necessity:
we should, I submit, give them the benefit of the doubt and
assume, as the Pharisaic scholars apparently did, that in
collaborating they acted in good faith in what they believed were
the best interests of their people. But the fact remains that his
Roman nomination would not advantage the high priest a great deal
unless he could reckon with some measure of cooperation from the
Sanhedrin and from the public at large. From the internal angle,
any resistance of scholars or priests to his authority would
necessarily render his appointment nugatory: it would do him
little good to be recognized as high priest by the Roman governor
if he were not accepted as such by his own Jews. He might, of
course, always ask for troops to crush resistance by force; but
from recent, and not so recent, experiences he could predict what
the outcome would be: not only would the desired moral authority
still be to seek, but martyrs would be made in the cause against
him, and his last remnant of sympathy and prestige be lost. There
is no high priest on record who would - or, for that matter, had
to - resort to Roman military aid to render his office workable:
the price that he would have to pay would have stultified the
whole endeavor.
That he was a Roman nominee, ultimately responsible to the
Roman governor and removable by him, must have stimulated rather
than diminished the high priest's natural aspiration to manage
the internal affairs of the Jews so smoothly and efficiently that
there would never be any ground for Roman interference. By
relying on him, who, of course, enjoyed some measure of their
confidence, the Romans were to be satisfied at all times that the
administration of those affairs was in safe and proficient hands.
It was a no less instinctive ambition of the high priest to
secure for himself, and for the organs under his control, as much
power and discretion as possible: negative success in preventing
Roman interference must be complemented by positive success in
the recognition and reinforcement of the autonomy and
jurisdiction of the Jewish authorities. Any failure of his and of
those directive organs uphold internal peace and order and good
government might result, if not in peremptory Roman intervention,
at least in curtailment of the powers and competences previously
enjoyed and exercised; peaceful and proper functioning would
prove their opacity and might even tempt the Romans to strengthen
their autonomy and enlarge it.
To succeed, then, the high priest patently depended on the
smooth working of the Sanhedrin and of the temple establishment,
that is to say, on the nature and extent of the cooperation which
he contrived to enlist from the members of the council and from
the priesthood. It must have been vital to him to gain the
support and goodwill of anyone with a seat and a voice in the
counsels of state, and it was axiomatic for him that his surest
technique was to pursue policies which would meet their wishes.
As it was, he must by law pursue the policies of the
majority, for all decisions had to be passed by its vote; but
where its views ran counter to his own inclinations, he would
rather yield to it, that being the standard and safest way for
men in authority to win popular support and trust. But even where
numerical predominance in the Sanhedrin might be Sadducean, the
high priest, though himself one by birth and persuasion, and
probably potentially Romanophile, would prefer to side with the
Pharisees and let them carry the day, not because he thought that
they were necessarily right, but because he knew that they
enjoyed the affection and confidence of the great bulk of the
population; and the Sadducean votes in the Sanhedrin could,
presumably, always be swung by him. Nor would he deviate in the
slightest from the traditional temple ritual: not that he would
not perhaps have liked at times to humor this or the other Roman
caprice, but, as a matter of deliberate internal policy, he would
choose to bow to the piety and orthodoxy of most of the priests.
He was thus in the unenviable position of a suitor for the
regard and respect of a Jewry which feared, suspected, and
somehow despised him. In simple psychology as well as prudent
policy, he would go about his task by attempting to enlist, first
and foremost, the cooperation of the Pharisaic members of the
Sanhedrin; and the best means to that end was to raise their
numerical strength and voting power. It was through the Pharisees
that he sought to reach the people. Any action or conduct on his
part that might estrange the Pharisees would be likely to wreck
the over-all policy to which he must have been committed.
AN EVER IMPORTANT MAINSTAY FOR JEWS
There was one fundamental issue on which there certainly was
a general consensus among Pharisees and Sadducean-priests and
elders and scribes: preservation of the powers of the Sanhedrin
and prevention of further Roman encroachments upon them: What
these powers actually were is, again, multitudinously
controversial.
There is no serious doubt as to the autonomy of the council
in purely religious matters of the native Jews: the Romans
allowed them to exercise their religion and would not normally
interfere with the manner of its exercise; their several attempts
to do so, particularly with the emperor's image, apparently
failed. Religious matters included everything connected with the
temple establishment, including the temple police, and, for the
purposes of our inquiry, we may postulate that there was no Roman
interference with the high priest's command of that constabulary.
CAPITAL PUNISHMENT - COULD THE JEWS EXECUTE IT?
But on the question with which we are primarily concerned,
that is, the power of the Sanhedrin to try criminal cases and
carry out capital punishment, there is no end to disputes among
the scholars, ancient and modern.
In the Gospel According to John, Jews are credited with
saying: "It is not lawful for us to put any man to death"
(18:31). It will be shown that this could not, in fact, have
been said by any Jews in authority and that it is, plainly and
simply, untrue, yet it has been taken as sufficient evidence that
the Jews had been deprived by the Romans either of all capital
jurisdiction or at least of the power to carry out their capital
sentences.
(We shall actually see that this sentence by John was really
within a context, a certain context, that being, the Jews could
not execute anyone to death for anti-Roman teachings, plans of
overthrowing the Roman government. All of that was a matter of
Roman courts and judgmental decisions - Keith Hunt)
It is because of this passage in the Gospel of John that
much scholarly attention and effort have been devoted to inquiry
into the scope and particulars of Sanhedrial criminal
jurisdiction. It has, however, already been convincingly
pronounced that, as far as Jewish responsibility for the death of
Jesus is in question, such inquiry is largely irrelevant: if the
capital jurisdiction of the Sanhedrin was unimpaired, it does not
follow that, in this particular case, the council exercised it;
and if it had been wholly or partly withdrawn, it would not
follow that the council could not have taken some action outside
its formal powers or within the limits of the restrictions set
upon it. We shall, therefore, relinquish the jurisdictional
theories to the handling of legal historians, and start from the
premise that the Sanhedrin had retained all the capital
jurisdiction that it had ever possessed under Jewish law, and
that there was no jurisdictional obstacle to its proceeding
against Jesus for any offense under, and in any manner compatible
with, that law. But the fact is that there is not enough
historical or other material available - notwithstanding talmudic
traditions to the contrary - to warrant a conclusion that the
Sanhedrin had been deprived by the Roman authorities, or by Roman
statute, of any part of its jurisdiction under Jewish laws. While
the Great Sanhedrin of Seventy-one was regarded as the ultimate
fount of all jurisdiction, civil, criminal, administrative, and
advisory, it did not itself exercise civil or criminal
jurisdiction except in a very few well-defined cases, as, for
instance, when the high priest was criminally indicted? General
criminal jurisdiction, including that in capital cases, was
exercised by the so-called Small Sanhedrin of twenty-three
judges. Josephus records the establishment of such Small
Sanhedrins in five different towns in about 60 B.C., and at the
time which concerns us, Small Sanhedrins sat in all major towns
throughout Judaea and Galilee.
(What the writer has said is that there is no evidence that
Jewish courts were rendered incapable of all judgment according
to their religious law, which included then, the sentence of
death, where their laws of Moses established the penalty of death
for certain crimes within their religious system - Keith Hunt)
The Great Sanhedrin was, in essence, a legislative body. In
periods of war and enemy occupation it would, of course, like any
legislature, be mainly preoccupied with the political issues on
which national and religious survival would hinge. Indeed, that
such preoccupation, even as a matter of law, came within its pur-
view may be inferred from the rule that no warlike operations
might be commenced except by virtue of its resolution. And it was
a preoccupation all the more reasonable and necessary inasmuch as
the Jews, on the one hand, were divided among themselves in
questions that touched on Roman and general politics, but, on the
other, agreed that, as toward the Romans, it was wiser to present
a united front. There were, to be sure, the zealots or
underground fighters who deprecated any "diplomatic" relations
whatsoever with the enemy: while they mustered recruits and
sympathizers from all classes of the population and were
certainly countenanced, if not actively encouraged, by the
prevailing opinion in the Sanhedrin, the independent policy which
they pursued toward the Romans was one with which the Sanhedrin
could not very well officially associate itself.
We shall see that if the Great Sanhedrin did meet in the
case of Jesus, it did so as the council in charge of political
affairs. It was not just a Small Sanhedrin, which could have
exercised jurisdiction in a criminal or capital case, but the
Great Sanhedrin, which would not exercise such jurisdiction at
all even if possibly competent to, if only for the reason that it
was much too much taken up at the time with current and pressing
political issues.
ROMAN AND JEWISH COURTS - HOW THEY INTERTWINED
Respecting general criminal jurisdiction, two further point
must be noted.
One is that no Sanhedrin could ever have exercised any
jurisdiction at all save in accordance with Jewish law: it could
take cognizance only of offenses known to and defined in that law
and could adopt only such criminal procedures as that law
allowed.
And the other is that, with the advent of Rome, there was
established in Judaea a second - the Roman-criminal jurisdiction
which means that the Jewish courts no longer monopolized it.
The two points are closely interconnected, because what acc-
tually transpired was that the Jewish courts exercised exclusive
criminal jurisdiction in respect of acts which were offenses only
against Jewish law, and the Roman governors court exercised
exclusive criminal jurisdiction in respect of acts which were
offenses only against Roman law.
(Ah, now we see the context of which John wrote in, and why the
Jews said, it was not permitted for them to lay capital
punishment of death on someone - the right for them not to do so
was within what was Roman law court power, which included that of
sedition against the Roman government, which the Jews were now
declaring to Rome was Jesus' crime, and hence worthy of death,
under roman law - Keith Hunt)
For example, the offense of desecrating the Sabbath, or of
idolatry, either an offense solely by Jewish law, would be within
the exclusive jurisdiction of the Jewish courts, and the Roman
governor would never claim jurisdiction over it; he could not,
because Roman law did not regard either act as a criminal
offense. On the other hand, sedition against the Roman
government, or contempt of the Roman emperor, would be an offense
within the exclusive jurisdiction of the governor; Jewish law did
not regard such acts as criminal offenses, and no Jewish court
would ever have punished anybody
for what, from the Jewish viewpoint, must have been regarded as
harmless or even laudable.
Some difficulty may have arisen in conflict situations, in
which an offense was common to Roman and Jewish law. Murder and
robbery, for instance, were offenses punishable under both sys-
tems, and the Roman governor and the Jewish courts might each
have claimed jurisdiction. Conflicts such as these may have been
solved according to the identity of the accused: we know from the
story of Paul that a Roman citizen could demand trial by a Roman
court for any offense which was not one purely of Jewish law
(Acts 23:27-29). Conversely, a non-Roman native would presumably
have been entitled to trial by a Jewish court, even if the
offense charged was recognized as such in Roman law also. It is,
however, not unlikely that the Roman governor could in such a
case require the surrender of the accused to him, and it is
probable that on his part he would never surrender to native
Jewish courts an offender already in his own custody, for
instance, a robber caught by Roman troops in flagrante delicto.
All power being virtually concentrated in his hands, he
could dictate to the Jewish courts when to exercise jurisdiction
in any such case and when not.
It would come to this, then: the Small Sanhedrin could try
any Jew for any offense under Jewish law, and sentence him to
death, and carry out the death penalty, and the Roman governor
would not interfere in any way, for all that he had the physical
and political power to. On the other hand, we must assume that
the Romans would not carry out the capital sentence of a Jewish
or other non-Roman court, but only put to judicial death
offenders tried and convicted by a Roman court for offenses
against Roman law.....
End quote
I think all this is a much better understanding of the real
situation in Judea at the time of Christ, in regards to the
Sanhedrin of the Jews, and the movement of Jewish judgment and
sentence within their laws of Moses and the Roman sentence and
judgment within their laws of what constituted a capital offence
with resultant sentence of death.
The Jewish courts and Great Sanhedrin could find no witness to
agree that Jesus had done anything within Jewish religious laws
to warrant the death sentence. Their last resort was to accuse
Jesus before the Romans of sedition and plot to overthrow the
Roman government. If successful in this accusation then they
could get the Roman authority to sentence death upon Jesus. They
could not put any man to death for this reason under Jewish law,
it was not within their power or authority either from God's word
or from the Roman government. Hence we have what John recorded
them as saying, "it is not permitted for us to put any man to
death." - which as we now see was a phrase or sentence that was
within a certain context.
But the Jewish leaders could get Jesus put to death if their
accusations against Him of treason and sedition against Rome, was
to be upheld as true before the Roman authority. At first the
Roman authorities waved off their accusations against Jesus as
"nothing" or "I find no evil in this man." But the continuing cry
from the Jews that Jesus should die, was with frustration and a
"washing of the hands" of the matter, given to them to decide if
another common criminal of the day, should die, Barabbas, or if
Jesus should die. The Jewish leaders and their frenzied mob chose
that it was to be Jesus Christ who should die - Keith Hunt.
.............
Entered on this Website January 2005
