The question of ‘Herods jurisdiction’ has lately been discussed by Mr. Sherwin-White.⁴⁹ He refers to Mommsen’s discussion in his Strafrecht,⁵⁰ based on a text of Celsus belonging to the beginning of the second century A.D.: ‘non est dubium quin, cuiuscumque est prouinciae homo in qui ex custodia producitur, cognoscere debeat in qui ei prouinciae praeest in qua agitur’ (‘without doubt, whatever be the native province of a man who is brought forth from custody the trial must be conducted by the governor of the province in which the relevant actions are done’).⁵¹ Mommsen suggested that this practice replaced an earlier one in which an offender was sent back to his province of origin for trial after a preliminary examination: but this latter practice was rather an exceptional one, of which some cases were known in the second century, and which Celsus. considered could be justified only by special circumstances (ex causa). Twenty-seven years after the trial of Jesus, when Paul was sent to the procurator Felix at Caesarea, Felix asked which province he belonged to, but when he was told that he was a Cilician, he apparently made no move to refer the case to the legate of Syria-Cilicia, but dealt with it himself―and rightly so, since the main item in the charge against Paul, alleged violation of the sanctity of the Jerusalem temple, concerned Felix’s province.⁵² (In this connexion we may note in passing that it is remarkable that alleged violation of the sanctity of the temple is not said to have figured in the charge against Jesus before Pilate, though it was raised in the earlier examination before the high priest.)⁵³

The probability is that Pilate was in no way bound to refer the case of Jesus to Antipas, but did so as a courteous gesture when he learned that some of the offences with which Jesus was charged had been committed in his home territory of Galilee. Antipas may have inherited, so far as his tetrarchy was concerned, some of the extraordinary rights of extradition conferred by Augustus on his father,⁵⁴ but such rights would have to be invoked before being granted. In any case, if Pilate’s action was one of courtesy, Antipas appreciated the gesture, but. was wise enough not to presume upon it. He recognized the superior authority of Rome’s representative, and sent Jesus back to Pilate, after trying in vain to make him do or say something worthy of the rumours of his activity which had come to his ears.

Antipas evidently allowed Pilate’s courtesy to wipe out the sense of grievance which he had felt against the procurator for some time, probable ever since Pilate’s troops had used unnecessary violence against some of Antipas’s Galilaean subjects six months or a year earlier, during a pilgrimage-festival in Jerusalem when their blood was ‘mixed with their sacrifices’ in the temple court.⁵⁵ A permanent Roman garrison was stationed in the Antonia fortress, north-west of the temple area, overlooking the outer court and communicating with it by two flights of steps.⁵⁶ When anything like a riot threatened to break out in the temple precincts, troops from the garrison could quell it at once; something of the sort had probably taken place on this occasion. Pilate, for his part, may have borne a grudge against Antipas ever since the latter, with other members of his family, had intervened with the emperor against Pilate in the incident of the votive shields recorded by Philo.⁵⁷

The ‘standing feud’ between the two men was brought to an end by this exchange of courtesies, and Pilate could now support his own judgment that Jesus was guilty of no capital offence by claiming that Antipas had found no more evidence than he himself to support the charges brought against Jesus by his accusers.⁵⁸

⁴⁶ Luke xxiii 5.

⁴⁷ Acts iv 27.

⁴⁸ Luke xxiii 6-12.

⁴⁹ Roman Society and Roman Law in the New Testament, pp. 28 ff.

⁵⁰ T. Mommsen, Römisches Strafrecht, 1899, pp. 356 ff.

⁵¹ Digesta Iuris Romani 48.3.11.

⁵² Acts xviii 34 ff.

⁵³ Mark xiv 57 ff.

⁵⁴ Josephus, BJ i 474.

⁵⁵ Luke xiii 1.

⁵⁶ BJ v 243 ff.; Acts xxi 35, 40.

⁵⁷ Philo, Legatio ad Gaium, 300.