A number of difficult and confusing questions present themselves at the
very beginning of any extensive and impartial investigation of the trial
of Jesus.
Did the Great Sanhedrin exist at the time of Christ? If it existed, was
it still a legally constituted court, having jurisdiction to try capital
offenses? Did it have jurisdiction of the particular offense with which
Jesus was charged? If the Great Sanhedrin was actually in existence, had
criminal jurisdiction in capital cases, and was judicially empowered to
try the offense with which Jesus was charged, did it actually try Him?
Were the rules of criminal procedure, prescribed in the Mishna and cited
in this Brief, in existence and actively in force in Judea at the time
of the trial of Jesus? What was the nature of the charge brought against
the Christ? Was He guilty as charged? Were forms of law duly observed in
the trial of the accusation against Him? Answers to these questions,
which will be considered in the Brief in the order above enumerated,
will cover the legal aspects of the Hebrew trial of Jesus.
_Did the Great Sanhedrin exist at the time of Christ?_ The answer to
this question is of prime importance, since the existence of a court
having jurisdiction of the person and subject matter of the suit is a
fundamental consideration in all litigation. It is generally supposed
that the Hebrew trial of Jesus took place before the Great Sanhedrin in
Jerusalem. But many able writers, both Jewish and Gentile, deny that
this court had any existence at the time of Christ. In the "Martyrdom of
Jesus," Rabbi Wise says: "But this body did positively not exist at the
time when Jesus was crucified, having been dissolved 30 A.C. In nowise,
then, any passages of the Gospels must be understood to refer to the
Great Sanhedrin." Many Jewish and several eminent Gentile authors agree
with this contention, which is founded upon a passage in Josephus in
which it is declared that King Herod had all the members of the
Sanhedrin put to death.[176] It is contended by these writers that the
supreme tribunal of the Jews was then abolished and was not restored
until subsequent to the crucifixion. Opposed to this assertion, however,
is the weight of both reason and authority. Schürer is of the opinion
that Josephus did not mean literally "all" ([Greek: pantas]) when he
wrote that Herod had destroyed all the members of the Great Sanhedrin;
since in the following book he relates that the same king caused to be
put to death the forty-five most prominent members of the party of
Antigonus, who must themselves have been members of this court; and
forty-five are twenty-six fewer than seventy-one, the full membership of
the Great Sanhedrin.[177] The same author asserts the existence and
discusses the jurisdiction of this court in the following language: "As
regards the area over which the jurisdiction of the Great Sanhedrin
extended, it has already been remarked above that its civil authority
was restricted, in the time of Christ, to the eleven toparchies of Judea
proper. And, accordingly, for this reason it had no judicial authority
over Jesus Christ so long as He remained in Galilee. It was only as soon
as He entered Judea that He came directly under its jurisdiction."[178]
Again, Salvador, who may be justly styled the Jewish Blackstone, wrote
concerning the condemnation of Jesus: "The _senate_ declared that Jesus,
son of Joseph, born at Bethlehem, had profaned the name of God in
usurping it for himself, a simple citizen. The capital sentence was then
pronounced." Now, the word "senate" is properly applied nowhere in
literature to any other Hebrew court than the Great Sanhedrin. This High
Court of the Jews has been frequently compared to the senate of Rome, to
the Areopagus of the Greek and to the parliament of England. It should
be noted in this connection that the great Jewish writer not only styled
the body that tried Jesus "senate" (Great Sanhedrin) but stated that it
pronounced a capital sentence, thus declaring that the supreme tribunal
of the Jews not only existed at the time of Jesus but had the right to
decree capital punishment.
Edersheim, discussing the alleged abolition of the Sanhedrin by Herod,
says: "The Sanhedrin did exist during his reign, though it must have
been shorn of all real power, and its activity confined to
ecclesiastical or semi-ecclesiastical causes. We can well believe that
neither Herod nor the procurators would wish to _abolish_ the Sanhedrin,
but would leave to them the administration of justice, especially in all
that might in any way be connected with purely religious questions. In
short, the Sanhedrin would be accorded full jurisdiction in inferior and
in religious matters; with the greatest show, but with the least amount
of real rule or of supreme authority."[179] This is a powerful voice in
favor of the existence of the supreme tribunal of the Jews at the time
of Christ; for Edersheim's "Life and Times of Jesus the Messiah" is the
best and most reliable biography of the Savior in any language.
Keim bases his advocacy of the existence of the Sanhedrin at the time of
Christ on New Testament authority. "Not only," he says, "does the New
Testament speak of Synedria in the time of Jesus and the Apostles, but
Jesus Himself, in a well-established utterance, mentions the Synedrion
(Sanhedrin) as the highest legally constituted tribunal and as having
the right to pass the sentence of death."[180]
The strongest passage in the New Testament supporting the contention of
the existence of the Great Sanhedrin at the time of the crucifixion is
contained in Acts v. 21: "But the high priest came, and they that were
with him, and called the _council_ together, and all the _senate_ of the
children of Israel, and sent to the prison to have them brought." Here,
the use of the words "high priest," "council," and "senate" in the same
connection, strongly suggests, almost accurately describes, the
president and members of the Great Sanhedrin; and besides, the words,
"sent to the prison to have them brought," indicate that this body was
exercising judicial functions.
Again, the utterance of Jesus above referred to by Keim is found in two
passages of Matthew. The first is in Chap. xvi. 21: "From that time
forth began Jesus to shew unto His disciples, how that He must go unto
Jerusalem, and suffer many things of the _elders_ and _chief priests_
and _scribes_, and be killed and be raised again the third day." The
second is in Chap. xx. 18: "Behold, we go up to Jerusalem; and the Son
of man shall be betrayed unto the chief priests and unto the scribes,
and they shall condemn him to death." The "elders" and "chief priests"
and "scribes" were the characteristic constituent elements of the Great
Sanhedrin; and the prophecy, "they shall condemn him to death," ascribed
to them the highest judicial prerogative, the right of passing the death
sentence. In his brilliant essay on the Talmud, Emanuel Deutsch
emphatically says: "Whenever the New Testament mentions the 'Priests,
the Elders, and the Scribes' together, it means the Great
Sanhedrin."[181] It is impossible to refrain from contrasting this
statement of a most eminent and learned Jewish writer with that of Rabbi
Wise, also very scholarly and pious, "In no wise, then, any passages of
the Gospels must be considered to refer to the Great Sanhedrin." Suffice
it to say that the weight of authority is with Emanuel Deutsch. And
that which seems to conclusively disprove the whole theory of the
nonexistence of the Great Sanhedrin at the date of the crucifixion, is
the fact that Josephus--whose account of the alleged killing of all the
members of the Sanhedrin by Herod is the very basis of the theory--in a
subsequent chapter, relating to a subsequent event, describes the
summoning of Hyrcanus, former king and high priest, before the Sanhedrin
to be tried by them. As a result of the trial, Hyrcanus was put to
death.[182] Such a personage could have been tried and condemned only by
the Great Sanhedrin, which was in existence subsequent to the alleged
destruction of all its members by Herod.
It is believed that enough has been said to show that the contention
that the Great Sanhedrin did not exist at the time of Christ is not well
founded. As a matter of reason, the mere destruction of the members of
the court by Herod did not, of necessity, abolish the court itself. From
what we know of the character and policy of Herod, he simply had the
members of an old and unfriendly aristocracy put to death in order that
he might make room in the court for an entirely new body friendly to him
and devoted to his interests. Again, it is entirely improbable that the
Roman masters, of whom Herod was but a subject prince and tool, would
have permitted the destruction of the most important local institution
of a conquered state. The policy of the Romans in this regard is well
known. Whenever it was consistent with the dignity and safety of the
Roman empire, local institutions were allowed to remain intact and
undisturbed. We are not aware of any good historical reason why the
Great Sanhedrin, the national parliament, and the supreme tribunal of
the Jews, should have been abolished thirty years before Christ, as
Rabbi Wise and other eminent scholars and theologians have contended.
After all, it seems to be more a matter of dogma than of history. The
majority of Jewish writers rest their case upon Josephus, with their
peculiar construction of the passage; the majority of Christian writers
quite naturally prefer the New Testament. But the line is not closely
drawn. Dr. Geikie, the eminent Gentile author, supports the Jewish
opinion, without reference, however, to the passage in Josephus. On the
other hand, Salvador, Edersheim, and Deutsch, all writers of Jewish
blood, support the Christian contention.
The assertion of Graetz that Jesus was arraigned before one of the Minor
Sanhedrins,[183] of which there were two in Jerusalem, is not to be
taken seriously, since these minor courts had no jurisdiction of the
crime with which Jesus was charged.[184] It is very evident from the
weight of authority that Jesus was tried before the Great Sanhedrin, and
that this court had authority to pass sentence of death. Upon this
theory, the author will proceed in framing the Brief.
_Did the Great Sanhedrin have jurisdiction to try capital offenses at
the time of the crucifixion?_ This question, involving great difficulty
and much confusion in discussing the trial of Jesus, arises from the
divergent opinions of Bible scholars as to the exact legal and political
status of the Jews at the time of Christ. Many concede the existence of
the Great Sanhedrin at this time, but insist that it had been shorn of
its most important judicial attributes; that the right to try capital
cases had been wholly taken from it; and that it retained the legal
right to try only petty crimes and religious offenses not involving the
death penalty. The Jews contend, and indeed the Talmud states that
"forty years before the destruction of the Temple the judgment of
capital causes was taken away from Israel." The great weight of
authority, however, is registered against this view. The New Testament
teachings on the subject have just been discussed in the beginning of
the Brief. The opinion generally held by Bible scholars is that the
Great Sanhedrin continued to exist after the Roman conquest of Judea and
after the time of Herod; that its legislative, executive, and judicial
powers remained substantially unimpaired in local matters pertaining to
the internal affairs of the Jews; and that the Roman representatives
intervened only when Roman interests required and the sovereignty of the
Roman State demanded. The question of sovereignty presented itself,
indeed, whenever the question of life and death arose; and Rome reserved
to herself, in such cases, the prerogative of final judicial
determination. Both Renan and Salvador hold the view that the Sanhedrin
had the right of initiative, the _cognitio causæ_; that is, the right to
try the case. In the event of the acquittal of the accused the matter
was finally ended without Roman interference, but in case of conviction
the Roman legate or procurator certainly might review and probably was
required to review the matter, and either affirm or reverse the
sentence. This is the prevalent opinion among the best writers; and is
plausible because it is at once consistent with the idea of the
maintenance of Roman sovereignty and of the preservation of the local
government of the Jews. However, many able writers, among them Rosadi
and Dupin, assert that the Jews had lost the right, by virtue of Roman
conquest, even to try capital cases. And it must be admitted that the
logic of law is in their favor, though the facts of history and the
weight of authority are against them.
_Did the Great Sanhedrin have jurisdiction of the particular offense
with which Jesus was charged?_ Admitting the existence of the Great
Sanhedrin at the time of Christ, and its right to initiate and try
proceedings in capital cases with reference to Roman authority, had it
jurisdiction, under Hebrew law, of the special accusation against
Christ? On this point there is little difference of opinion. Jesus was
brought before the Sanhedrin on the charges of sedition and blasphemy,
both of which crimes came within the cognizance of the supreme tribunal
of the Jews.[185]
_Was there a regular legal trial of Jesus before the Great Sanhedrin?_
Admitting that this court was in existence at the time of Christ, that
it had competence, with reference to Roman authority, to try capital
cases, and that it had jurisdiction under Hebrew law of the crime with
which Jesus was charged, did it actually conduct a regular, formal trial
of the Christ? Many able critics give a negative answer to this inquiry.
Jost, one of the greatest and most impartial of Jewish historians,
designates the crucifixion of Jesus "a private murder (Privat-Mord)
committed by burning enemies, not the sentence of a regularly
constituted Sanhedrin."[186] Edersheim supports this view as to the
nature of the trial.[187]
A certain class of writers base their objection to a regular trial on
the ground of the nonexistence of the Great Sanhedrin at the time of
Christ. If this court did not exist, they say, there could not have been
any regular judicial proceeding, since this body was the only Hebrew
tribunal that had jurisdiction to try the offense with which Jesus was
charged. Others, who hold similar views, maintain that the errors were
so numerous and the proceedings so flagrant, according to the Gospel
account, that there could have been no trial at all, and that it was
simply the action of a mob. These writers contend that the members of
the Sanhedrin acted more like a vigilance committee than a regularly
organized tribunal. Of this opinion is Dr. Cunningham Geikie.
Still another class of critics insist that the Hebrew judges exercised
only accusatory functions, and that the examination of Jesus at night
was merely preparatory to charges to be presented to Pilate.
Others still apparently reverse the order, and insist that the Hebrew
trial was the only one; that the duty of Pilate was merely to review,
sanction, and countersign the verdict of the Sanhedrin. Of this class is
Renan, who says: "The course which the priests had resolved to pursue in
regard to Jesus was quite in conformity with the established law. The
plan of the enemies of Jesus was to convict him, by the testimony of
witnesses and by his own avowals, of blasphemy and of outrage against
the Mosaic religion, to condemn him to death according to law, and then
to get the condemnation sanctioned by Pilate."[188] Salvador and Stapfer
agree with Renan that the Hebrew trial was regular and that the
proceedings were legal. On the other hand, Rosadi, Dupin, Keim and many
others denounce the proceedings in the trial of Jesus as outrageously
illegal.
As to the number of trials, the authorities above cited seem to be
exceptions to the rule. By far the greater number contend that there
were two distinct trials: a Hebrew and a Roman, separate and yet
dependent. The opinion of this class of writers is most clearly
expressed by Innes, who says: "Whether it was legitimate or not for the
Jews to condemn for a capital crime on this occasion, they did so.
Whether it was legitimate or not for Pilate to try over again an accused
whom they had condemned, on this occasion, he did so. There were
certainly two trials."[189] This is the view of the writer of these
pages; and he has, accordingly, divided the general subject into two
trials, devoting a volume of the work to each. It may be answered, then,
that there was a regular trial of Jesus before the Great Sanhedrin. The
relation of this trial to the Roman proceeding will be more fully
discussed in the second volume of this treatise.
_Were the rules of criminal procedure prescribed in the Mishna and cited
in this Brief, in existence and actively in force in Judea at the time
of the trial of Jesus?_ This question has been answered in the negative
by several writers of repute. Others have answered that the matter is in
doubt. But it is very generally agreed that an affirmative answer is the
proper one. Out of this question, two others arise: (1) Were the rules
of criminal law, herein cited, obsolete at the time of the crucifixion?
(2) Were they the legal developments of an age subsequent to that great
event? In either case, their citation, in this connection, is without
reason or justification.
It is a sufficient answer to the first of these questions that none of
the standard works on Hebrew criminal law classes any of the rules
herein stated as obsolete at the time of Christ. In support of a
negative answer to this question, it may be urged that all of the
aforesaid rules were the essential elements of an enlightened and humane
criminal procedure in capital cases at the date of the crucifixion.
The answer to the second question above suggested is a more serious
matter. It is historically true that the Mishna was not reduced to
writing until two hundred years after the beginning of our era. The
Jerusalem Talmud was not redacted until 390 A.D.; and the Babylonian
Talmud, about 365-427 A.D. The question at once arises: Were the rules
of criminal procedure, which we have herein invoked in the discussion of
this case, the growth of the periods intervening between the crucifixion
of Jesus and these dates? Two valid reasons give a negative answer to
this question. In the first place, the criminal rules applied in the
Brief are in nearly every case traceable to Mosaic provisions which were
framed more than a thousand years before the trial of Jesus. In the
second place, they could not have been the developments of a time
subsequent to the crucifixion, because less than forty years, a single
generation, intervened between that event and the fall of Jerusalem,
which was followed by the destruction of Jewish nationality and the
dispersion of the Jews. This short interval was a period of national
decay and disintegration of the Jewish people and could not have been,
under Roman domination, a formative period in legal matters. After the
fall of Jerusalem, the additions and developments in Hebrew law were
more a matter of commentary than of organic formation--more of Gemara
than of Mosaic or Mishnic growth. The decided weight of authority, then,
as well as the greater reason, is in favor of the proposition that the
Hebrew criminal law had reached its full development and was still in
active force at the time of which we write.
_What was the nature of the charge brought against Christ at the trial
before the Sanhedrin? Was He guilty as charged?_ The questions
preceding these were secondary, though important. If the Great Sanhedrin
did not exist at the time of Christ, we are forced to believe and admit
that the men who arrested and examined Jesus at night were nothing more
than an irresponsible rabble, acting without judicial authority or legal
excuse. If it was without criminal jurisdiction, though in existence, we
have erroneously spoken of a Hebrew trial. If the rules of criminal
procedure which we have invoked were not in existence at the time of the
crucifixion, we have proceeded upon a false hypothesis. Fortunately, the
weight of authority, in every case, is so overwhelmingly in our favor,
and our contention is, in each case, so well founded in reason, that we
feel justified in now proceeding to a discussion of the real merits of
the case, involved in answers to the questions: What was the nature of
the charge or charges brought against Jesus at the Hebrew trial? Was He
guilty as charged?
The accusations against Christ were numerous, both in and out of court;
and it will help to simplify matters and to arrive at a clear
understanding, if, in the very beginning, the distinction be made and
held in mind between _judicial_ and _extra-judicial_ charges. By
judicial charges are meant those made at the time of the examination of
Jesus by the Sanhedrin, assembled at night in the palace of Caiaphas. By
extra-judicial charges are meant those made out of court at divers times
and places in Jerusalem, Galilee, and elsewhere by the accusers of the
Christ, and especially by the spies who dogged His footsteps during the
last days of His ministry on earth. Ordinarily, it would be proper, in
a work of this kind, to consider only charges made after the trial of
the accused had begun, and jeopardy had attached. All others are
extra-judicial and are entitled to only passing notice. It would be
proper to omit them altogether, if they did not serve to throw much
light upon the specific charges at the trial. An excellent summary of
the extra-judicial charges brought against Jesus at various times in His
career, is given in Abbott's "Jesus of Nazareth," p. 448: "It was
charged that He was a preacher of turbulence and faction; that He
flattered the poor and inveighed against the rich; that He denounced
whole cities, as Capernaum, Bethsaida, Chorazin; that He gathered about
Him a rabble of publicans, harlots, and drunkards, under a mere pretense
of reforming them; that He subverted the laws and institutions of the
Mosaic commonwealth, and substituted an unauthorized legislation of His
own; that He disregarded not only all distinctions of society, but even
those of religion, and commended the idolatrous Samaritan as of greater
worth than the holy priest and pious Levite; that, though He pretended
to work miracles, He had invariably refused to perform them in the
presence and at the request of the Rabbis of the Church; that He had
contemned the solemn sanctions of their holy religion, had sat down to
eat with publicans and sinners with unwashen hands, had disregarded the
obligations of the Sabbath, had attended the Jewish feasts with great
irregularity or not at all, had declared that God could be worshiped in
any other place as well as in His Holy Temple, had openly and violently
interfered with its sacred services by driving away the cattle gathered
there for sacrifice."
These different charges were doubtless present in the minds and hearts
of the members of the Sanhedrin at the time of the trial, and probably
influenced their conduct and entered into their verdict. But only one or
two of these accusations can be said to have any direct connection with
the record in this case, and, consequently, can be only indirectly
considered in discussing its merits.
We come now to examine the actual charges made at the night trial before
the Sanhedrin. The subsequent charges before Pilate have no place in
this volume. A review of the proceedings at the time of the examination
in the palace of Caiaphas reveals two distinct charges: one preferred by
witnesses who had been summoned by the Sanhedrin, the other preferred by
Caiaphas himself.
First, according to Matthew, "At the last came two false witnesses, and
said, This fellow said, I am able to destroy the temple of God, and to
build it in three days."[190] The same testimony is thus reported by
Mark: "And there arose certain, and bare false witness against him,
saying, We heard him say, I will destroy this temple that is made with
hands, and within three days, I will build another made without
hands."[191] Luke and John do not discuss the night trial before the
Sanhedrin, and therefore make no reference to the charges brought
forward by the false witnesses. The second accusation made against
Jesus is that by Caiaphas himself, who embodies his charge in the form
of an oath or adjuration which he administered to the accused: "I adjure
thee by the living God that thou tell us whether thou be the Christ, the
Son of God." Then came the confession and condemnation. "Jesus said unto
him, Thou hast said: nevertheless I say unto you, Hereafter shall ye see
the Son of man sitting on the right hand of power, and coming in the
clouds of heaven. Then the high priest rent his clothes, saying, He hath
spoken _blasphemy_; what further need have we of witnesses? behold, now
ye have heard his blasphemy. What think ye? They answered and said, He
is guilty of death."[192]
These few words of Scripture are the essential parts of the record of
fact of the most awful trial in the history of the universe. An analysis
of the evidence shows the existence of two distinct charges: that
preferred by the false witnesses, accusing Jesus of sedition; and that
of blasphemy made by Caiaphas himself.
Concerning the testimony adduced in support of the first charge, Mark
says: "For many bare false witness against him, but their witness agreed
not together."[193] Now, we have seen that the concurrent testimony of
at least two witnesses, agreeing in all essential details, was necessary
to sustain a conviction under Hebrew law. If one witness against the
accused contradicted any other witness against the accused, all were
rejected. Under this rule of law, when "their witness agreed not
together," according to Mark, the charge of sedition was abandoned, and
the accusation of blasphemy then followed, which resulted in a
confession and condemnation. Later on, in another place, we shall
discuss the illegality of a double accusation, in the same breath and at
the same trial. But at this point we have no further interest in the
abandoned charge, except to say that the false witnesses, in their
ignorance and blindness, failed to grasp the Master's allegorical
language in reference to the destruction of the Temple. Their
worldly-mindedness and purely physical conception of things centered
their thoughts upon the Temple at Jerusalem, and gave a purely temporal
and material interpretation to His words. "Forty and six years was this
temple in building, and wilt thou rear it again in three days?"[194]
This question asked by the original auditors, shows a total
misconception of the true meaning of the language of Jesus. The
spiritual allusion to the resurrection of His own body seems never to
have penetrated their thoughts. Then, again, their general statement
was, in effect, an absolute misrepresentation. By perverting His
language, He was made to utter a deliberate threat against a national
institution, around which clustered all the power, sanctity, and glory
of the Hebrew people. He was made to threaten the destruction of the
Temple at Jerusalem. But it is most reasonable to infer from the entire
evidence as contained in the Sacred Writings that the words imputed to
Jesus by the false witnesses were not those which He actually used. In
reality, He did not say: "I _can destroy_," or "I _will destroy_"; but,
simply, "_Destroy_." "Destroy this temple, and in three days I will
raise it up."[195] This is evidently a purely hypothetical expression
and is equivalent to "_Supposing you destroy this temple_." St. John, in
whose presence, it seems, this language was used, correctly interprets
the Savior's meaning when he says: "He spake of the temple of his
body."[196]
The evidence of the false witnesses was so contradictory that even
wicked judges were forced to reject it and to conduct the prosecution on
another charge.
We come now to consider more closely the real accusation upon which
Jesus was condemned to death. At first glance, there seems to be no
difficulty in determining what this accusation was, since the Gospel
record specifically mentions the crime of blasphemy. It was for this
offense that Caiaphas pronounced judgment against Jesus with the
unanimous approval of his fellow-judges. "Then the high priest rent his
clothes and saith, What need we any further witnesses? ye have heard the
_blasphemy_: what think ye? and they all condemned him to be guilty of
death." But what had they heard that constituted blasphemy? Nothing more
than His own confession that He was "the Christ, the Son of God." This
seems simple enough upon its face; but a vast mass of acrimonious
discussion has resulted from these few passages of the Scripture. The
main difficulty turns upon the meaning of the word "blasphemy," as used
by the high priest in passing condemnation upon Jesus. The facts
adduced at the trial, or rather the facts suggested by the oath or
adjuration addressed to Jesus, as to whether or not He was "Christ, the
Son of God," did not, in the opinion of many, constitute blasphemy under
the definition of that term given in the Mosaic Code and interpreted by
the Rabbinic writers whose opinions have been embodied in commentaries
upon the Mishna. Eminent Jewish writers have ridiculed the idea of
attempting to make a case of blasphemy out of a mere claim of being a
"Son of God." Rabbi Wise, in "The Martyrdom of Jesus," has very tersely
stated the Jewish position on the subject. "Had Jesus maintained," he
says, "before a body of Jewish lawyers to be the Son of God, they could
not have found him guilty of blasphemy, because every Israelite had a
perfect right to call himself a son of God, the law (Deut. xiv. 1)
stating in unmistakable words, 'Ye are sons of the Lord, your God.' When
Rabbi Judah advanced the opinion, 'If ye conduct yourselves like the
sons of God, ye are; if not, not,' there was Rabbi Mair on hand to
contradict him: 'In this or in that case, ye are the sons of the Lord
your God.' No law, no precedent, and no fictitious case in the Bible or
the rabbinical literature can be cited to make of this expression a case
of blasphemy. The blasphemy law is in Leviticus (xxiv. 15-20), which
ordains, 'If any man shall curse his God (i.e., by whatever name he may
call his God), he shall bear his sin,' but the law has nothing to do
with it, dictates no punishment, takes no cognizance thereof. 'But he
who shall curse the name of Jehovah, he shall surely be put to death,'
be the curser native or alien. Another blasphemy law exists not in the
Pentateuch. The ancient Hebrews expounded this law, that none is guilty
of blasphemy in the first degree, unless he curses God himself by the
name of Jehovah; or, as Maimonides maintains, by the name Adonai. The
penalty of death is only threatened in the first degree. The Mishna
states expressly as the general law, 'The blasphemer is not guilty,
unless he (in cursing the Deity) has mentioned the name itself' (of
Jehovah or Adonai), so that there can be no doubt whatever that such was
the law in Israel. It is clear that the statements made by Mark, in the
name of Jesus, had nothing in the world to do with the blasphemy laws of
the Jews."[197]
Rabbi Wise was concededly an able and accomplished theologian; and in a
general way the above extract states the truth. But it does not state
the whole truth, and in one or two places is certainly erroneous.
Leviticus xxiv. 15-20 is undoubtedly the blasphemy statute of the Mosaic
Code. But Mr. Wise was assuredly wrong when he stated that "another
blasphemy Law exists not in the Pentateuch." For, if this were a correct
statement, other eminent Jewish authorities, as well as many Gentile
authors, would be all at sea. Besides, the New Testament use of the word
"blasphemy," in many places, would only serve to illustrate the dense
ignorance of the Jews of the time of Jesus as to the meaning of the
term, if the author of "The Martyrdom of Jesus" were right.
In this connection, let us now consider another Jewish authority, as
able and even more famous than the one just cited. In Salvador's
celebrated treatise entitled "Histoire des Institutions de Moïse," he
devotes a chapter to the question of the judgment and condemnation of
Jesus. Touching the nature of the charge against Christ and the real
cause of His conviction, he says: "But Jesus, in presenting new theories
and in giving new forms to those already promulgated, speaks of himself
as God; his disciples repeat it; and the subsequent events prove in the
most satisfactory manner that they thus understood him. This was
_shocking blasphemy_ in the eyes of the citizens: the law commands them
to follow Jehovah alone, the only true God; not to believe in gods of
flesh and bones, resembling men or women; neither to spare or listen to
a prophet who, even doing miracles, should proclaim a new god, a god
neither they nor their fathers had known. The question already raised
among the people was this: Has Jesus become God? But the Senate having
adjudged that Jesus, son of Joseph, born in Bethlehem, had profaned the
name of God by usurping it to himself, a mere citizen, applied to him
the law in the 13th Chapter of Deuteronomy and the 20th verse in Chapter
18, according to which every prophet, even he who works miracles, must
be punished when he speaks of a god unknown to the Jews and their
fathers: the capital sentence was pronounced."
Here we have the doctors divided; Wise saying that "another blasphemy
law exists not in the Pentateuch," and Salvador contending that Jesus
was legally convicted of blasphemy under the Mosaic Law as it was laid
down, not in Leviticus xxiv. 15-20, but in Deuteronomy xiii.
The law in Deuteronomy is peculiarly impressive in its relationship to
the charges against Jesus.
"If there arise among you a prophet, or a dreamer of dreams, and giveth
thee a sign or a wonder, And the sign or the wonder come to pass,
whereof he spake unto thee, saying, Let us go after other gods, which
thou hast not known, and let us serve them; Thou shalt not hearken unto
the words of that prophet, or that dreamer of dreams: for the Lord your
God proveth you, to know whether ye love the Lord your God with all your
heart and with all your soul. Ye shall walk after the Lord your God, and
fear Him, and keep His commandments, and obey His voice, and ye shall
serve Him, and cleave unto Him. And that prophet, or that dreamer of
dreams, shall be put to death; because he hath spoken to turn you away
from the Lord your God, which brought you out of the land of Egypt and
redeemed you out of the house of bondage, to thrust thee out of the way
which the Lord thy God commanded thee to walk in."[198]
The position of Rabbi Wise cannot be defended by trying to identify this
passage with the one in Leviticus. The law in Deuteronomy has reference
to that form of blasphemy which is nearly identical with idolatry, that
is, seducing the people from their allegiance to Jehovah, and inducing
them to go off after strange gods. The law in Leviticus applies
peculiarly to profane epithets and to curses hurled at Jehovah Himself.
Again, Rabbi Wise ridicules the notion that Caiaphas and the Sanhedrists
attempted to twist the use of the words "Son of God" into a crime. He is
right when, quoting Deuteronomy xiv. 1, he says that "every Israelite
had a perfect right to call himself a son of God." But here again the
eminent theologian has stopped short of the entire truth. It is not at
all probable that he would have contended that "every Israelite had a
perfect right to call himself the son of God" in the sense of being
equal with God Himself. Should reply be made that such would be an
unwarranted construction of Christ's confession that he was "the Christ,
the Son of God," then the opinion of Salvador would be again invoked. In
a note to the "Jugement de Jesus," he says: "I repeat that the
expression 'Son of God' includes here the idea of God Himself."
We are not in a position, nearly two thousand years after the event
occurred, to tell exactly what was in the mind of Caiaphas at the time.
But, in view of the condemnation which he passed, and of the language
which he used in passing it, we are certainly justified in supposing
that he deliberately and designedly connected the two titles--"the
Christ" and "the Son of God"--to see if Jesus would assume
responsibility for both, or if He would content himself with the simple
appellation, "son of God," to which every pious Israelite was entitled.
The reply of Jesus, "Thou hast said," meaning "I am" the Christ, the Son
of God, was an affirmation of His identity with the Father. The
condemnation for blasphemy immediately followed. Such a sentence would
have been inconsistent with any other theory than the assumption that
Jesus had claimed equality with God, or had arrogated to Himself power
and authority which belonged alone to Jehovah. This definition of
blasphemy is certainly different from that laid down in Leviticus xxiv.
15-20.
As a matter of history, it is really true that both the Old and New
Testaments reveal not only the existence of more than one blasphemy
statute in the Mosaic Code, but also more than one conception and
definition of blasphemy at different periods in the development of the
Hebrew people.
In II Samuel xii. 14 the word "blaspheme" is used in the sense "to
despise Judaism." In I Macc. ii. 6 blasphemy means "idolatry." In Job
ii. 5; II Kings xix. 4-6; Hosea vii. 16, the term indicates "reproach,"
"derision."
Not only might God be blasphemed, but the king also, as his
representative. The indictment against Naboth was: "Thou didst blaspheme
God and the king."[199] The people of Jehovah and his Holy Land might
also become victims of blasphemy.[200]
The New Testament writers frequently charge the Jews with blaspheming
Jesus, when they use insulting language toward Him, or deny to Him the
credit that is His due.[201]
In Revelation, St. John tells that he "saw a beast rise up out of the
sea, having seven heads and ten horns, and upon his horns ten crowns,
and upon his heads the name of blasphemy. And he opened his mouth in
blasphemy against God, to blaspheme his name, and his tabernacles, and
them that dwell in heaven."[202] This beast was the symbolical
Antichrist, and his blasphemy was simply the treasonable opposition of
the antichristian world to God and His kingdom.
A comprehensive meaning of "blasphemy," in the various senses above
suggested, is conveyed by the definition of the term "treason" under the
governments of Gentile commonwealths. A single statute, 25 Edw. iii. c.
2, defines seven different ways of committing treason against the king
of England.[203] The _lex Julia majestatis_, promulgated by Augustus
Cæsar, was a single statute which comprehended all the ancient laws that
had previously been enacted to punish transgressors against the Roman
State.[204] There was no particular statute, as Rabbi Wise would have us
believe, among the ancient Hebrews, that defined all forms of blasphemy
against Jehovah. But a very clear notion of the various phases of
blasphemy may be had if we will keep in mind the various definitions of
treason under modern law.
It should not be forgotten that the ancient Hebrew Commonwealth was a
pure theocracy; that Jehovah was king; that priests, prophets, and
people were merely the subjects and servants of this king; that its
government and its institutions were the products of his brain; and
that the destinies of the people of Israel, the "chosen seed," were
absolutely in his keeping and subject to his divine direction and
control. It should also be remembered that the God of Israel was a most
jealous God; that the greatest irritant of His wrath was any
encroachment upon His rights as ruler of men and creator of the
universe; that for the protection of His sovereignty, He had proclaimed
to His people through His servant Moses the most stringent statutes
against any profanation of His name or disloyalty to His person. The
Decalogue was the great charter of Jehovah for the government of His
children. The first three commandments were special statutes intended to
excite their gratitude and insure their attachment. He reminds them of
the circumstances of their deliverance, and warns them, under severe
penalty, against going off after strange gods.
But, not content with these, He had still other statutes proclaimed,
furnishing safeguards against idolatry and insuring loyalty to His
person.[205] At the time of the establishment of the Hebrew theocracy,
idolatry was everywhere to be found. Not only were the neighboring
peoples worshipers of idols, but the Israelites themselves were prone to
idolatry and to running off after strange gods. The worship of the
Golden Calf is a familiar illustration of this truth. Thus the
Commonwealth of Jehovah was threatened not only with idolatrous invasion
from without but with idolatrous insurrection from within. Hence the
severity of the measures adopted for the protection of His kingdom, His
person, and His name, not only against idolaters but against
necromancers, witches, sorcerers, and all persons who pretended to
supernatural powers that did not proceed directly from Jehovah Himself.
The enforcement of and obedience to these various statutes required an
acknowledgment of the power and authority of Jehovah in every case where
prophecies were foretold, wonders worked, and supernatural powers of any
kind exhibited. And throughout the Sacred Scriptures, in both the Old
and New Testaments, we find traces of the operation of this law.
Sometimes it is an instance of obedience, as when Pharaoh wanted to
credit Joseph with the power of interpreting dreams. "And Joseph
answered Pharaoh, saying, It is not in _me_: God shall give Pharaoh an
answer of peace."[206] At other times, it is an act of disobedience. To
satisfy the thirsty multitude Moses smote the rock and brought forth
water at Meribah. But instead of giving the Lord credit for the act,
Moses claimed it for Aaron and himself, saying, "Hear now, ye rebels:
must _we_ fetch you water out of this rock?" Whereupon Jehovah grew very
angry and said to Moses and Aaron: "Because ye believe me not, to
sanctify _me_ in the eyes of the children of Israel, therefore ye shall
not bring this congregation into the land which I have given them."[207]
As punishment for this blasphemous conduct, neither Moses nor Aaron was
permitted to enter the Promised Land.[208] And that this omission to
give due acknowledgment to the Lord for the miraculous flow of water was
treasonable or blasphemous under the wider interpretation of the term,
cannot be doubted.
From the foregoing remarks it is clear that blasphemy among the ancient
Hebrews was subject to a twofold classification: (1) A verbal
renunciation and profane speaking of the name of Jehovah. To this kind
of blasphemy the provision in Leviticus xxiv. 15-20 was applicable. This
was blasphemy in its generally accepted but narrower and more restricted
sense. This kind of blasphemy indicated a most depraved and malignant
state of mind, and to secure a conviction it was necessary to show that
the word "Jehovah" or "Adonai" had been pronounced. (2) "Every word or
act, directly in derogation of the sovereignty of Jehovah, such as
speaking in the name of another god, or omitting, on any occasion that
required it, to give to Jehovah the honor due to His own name."[209]
This form of blasphemy was nearly the same as treason under modern
governments, and included all offenses that threatened the usurpation of
the throne of Jehovah, the destruction of His institutions, and that
withheld from Him due acknowledgment of His authority and authorship in
all matters of miracle and prophecy.
Returning to the trial in the palace of Caiaphas, let us again consider
the question: Was Jesus guilty of blasphemy under any of the definitions
above given? Had He ever cursed the name of Jehovah and thereby brought
Himself within the condemnation of the law, as laid down in Leviticus
xxiv. 15-20? Certainly not. Every word uttered by Him at the trial, as
well as every other expression elsewhere uttered at any time or place,
was said with reverence and awe and love in praise and glorification of
the name and person of Jehovah. Rabbi Wise ridicules the notion that
Jesus was ever tried upon the charge of blasphemy, because it is not
recorded anywhere that He ever used any but tender and affectionate
language in speaking of the Heavenly Father.
Had Jesus blasphemed, in the sense of "despising Judaism," and thereby
brought Himself within the purview of the rule as exemplified in II Sam.
xii. 14? Certainly not. There is no record anywhere that He despised
Judaism. Jesus revered both the Law and the Prophets. He claimed that He
came to fulfill, not to destroy them.[210] He frequently denounced
Pharisaic formalism and hypocrisy, but at the same time He was a most
loyal Jew and a devoted son of Israel.
Had He blasphemed by working wonders in His own name, and omitting to
give Jehovah credit for them; and did He thereby bring Himself within
the condemnation of the rule exemplified by Moses and Aaron in the
matter of striking water from the rock at Meribah? We are forced to
answer this question in the affirmative. If we regard Jesus as a mere
man, a plain citizen, like Moses, the New Testament discloses many
infractions of the Law in His prophecies and miracles. It is true that
in John v. 19 it is said, "Verily, verily, I say unto you, The Son can
do nothing of himself, but what he seeth the Father do." Here He
affirmed that the power was from God and not from Himself. Again, having
raised Lazarus from the dead, Jesus said, "Father, I thank thee that
thou hast heard me,"[211] thus acknowledging the intervention of Jehovah
in the performance of the miracle. In several other places He gave the
Father credit for the act of the Son. But these were exceptions,
isolated cases. The law required an express acknowledgment in every case
of prophesy or miracle working. "Thus saith the Lord" was either the
prologue or epilogue of every wonder-working performance. In all the
miracles wrought by him in Egypt Moses had given due credit to Jehovah.
But this was not enough. He was made an example for all time when he
failed to make acknowledgment in the matter of striking the water from
the rock. Now Jesus worked many miracles in no other name than His own,
and in so doing brought Himself within the operation of the rule and of
the precedent established in the case of Moses and Aaron. The curing of
the bloody issue,[212] the stilling of the tempest,[213] the chasing of
the devils into the sea,[214] the raising of Jairus' daughter,[215] and
of the son of the widow of Nain[216] from the dead, were done without
any mention of the power and guidance of Jehovah.
But these transgressions were extra-judicial offenses and have been
discussed merely as an introduction throwing light upon the specific
charge at the trial, that Jesus had claimed to be "the Christ, the Son
of God." The question of the high priest is meaningless, unless
interpreted in the light of knowledge which we know the members of the
Sanhedrin had regarding the wonder-working performances of the Christ.
The failure of Jesus to acknowledge the power of Jehovah in working
miracles might be interpreted as a tacit avowal that He Himself was
Jehovah, and that therefore no acknowledgments were necessary. The
silence itself was a proclamation of the divinity that was in Him, which
placed Him above a law intended to govern the conduct of men like Moses
and Aaron.
We are now prepared to consider the final question: Had Jesus
blasphemed, when He confessed to the high priest that He was "the
Christ, the Son of God"? Had He blasphemed in that wider sense which
Salvador has interpreted as being the Jewish notion of blasphemy at the
time of Christ; that is, by claiming at once the attributes of the
Messiah and the Son of God? Had He asserted an equality with God which
looked to a usurpation of His power and the destruction of His throne;
that is, did the confession of Jesus that He was "Christ, the Son of
God," suggest a rivalry between Him and Jehovah which might result in
the dethronement of the latter and the substitution of the former as the
Lord and King and Ruler of Israel? Regarding Jesus as a mere man, a
plain citizen, an affirmative answer to any one of these questions would
convict Him of blasphemy, according to the Jewish interpretation of that
term at the time of Christ; for the Hebrew Jehovah had repeatedly
proclaimed that He was a jealous God, and that He would brook neither
rivals nor associates in the government of His kingdom.
That Jesus had more than once identified Himself with Jehovah, and had
claimed divine attributes and powers; and that the Jews regarded all
these pretenses as blasphemous, is evident, and can be ascertained from
more than one passage of New Testament Scripture. On one occasion the
Savior said to one sick of palsy: "Son, be of good cheer; thy sins be
forgiven thee. And, behold, certain of the Scribes said within
themselves, This _man_ blasphemeth."[217] According to Luke, they said:
"Who is this man which speaketh blasphemies? Who can forgive sins but
God alone?"[218] Here, according to the Scribes and Pharisees, Jesus had
blasphemed by claiming the power which alone belonged to Jehovah, that
of forgiving sins; or, at least, by exercising a supernatural power
without acknowledging the authorship and guidance of the Almighty. It
should be remembered that in this instance of alleged blasphemy Jesus
had not remotely cursed or profaned the name of Jehovah; but, according
to Jewish notions of the times, had exercised a prerogative, that of
forgiving sins, which belonged solely to Jehovah, without giving credit.
Again, we read this passage in the New Testament: "Therefore Jews sought
the more to kill him, because he not only had broken the Sabbath, but
said also that God was his father, making himself equal with God."[219]
Here we see that the Jews of the days of Jesus, as well as Salvador in
our own day, construed the claims of Jesus to be "the Christ, the Son of
God," as an assertion of equality with Jehovah.
Again, on another occasion, Jesus said emphatically: "I and my Father
are one. Then the Jews took up stones again to stone him. Jesus answered
them, Many good works have I shewed you from my Father; for which of
those works do ye stone me? The Jews answered him, saying, For a good
work, we stone thee not; but for blasphemy; and because that thou, being
a man, makest thyself God."[220] Even before this bold declaration of
His identity with Jehovah, He had intimated that He was of Heavenly
origin and had enjoyed a divine preëxistence. He had declared that He
was the "Bread which came down from Heaven,"[221] and that "Before
Abraham was, I am."[222] The Jews regarded His statement that He had
lived before Abraham as blasphemy, and "took up stones to cast at him,"
this being the usual punishment for blasphemous conduct.
We have said enough to emphasize the point that there was another kind
of blasphemy known to the Jews of the days of Jesus than that prescribed
in Leviticus; and that the confession of being "Christ, the Son of God,"
as the Jews and Caiaphas interpreted the term, brought Jesus within the
meaning of blasphemy, in its wider signification--that of assuming
equality with God. The numerous illustrations above furnished were
given to provide means of clear interpretation of the term blasphemy, as
used in the condemnatory sentence of the high priest. For it is clearly
evident that he and the other judges must have had many charges against
Jesus in mind other than those that appear in the record of the trial.
But we repeat, these extra-judicial charges must be considered only for
purposes of correct interpretation and as a means of throwing light upon
the actual proceedings in the night trial before the Sanhedrin. We
further repeat that the New Testament furnishes abundant evidence that
Jesus the man, the Jewish citizen, had, at divers times and places,
committed blasphemy against Jehovah, under a strict interpretation of
the law of God.
Mr. Simon Greenleaf, the great Christian writer on the Law of Evidence
and the Harmony of the Gospels, has thus tersely and admirably
summarized the matter from the lawyer's point of view: "If we regard
Jesus simply as a Jewish citizen, and with no higher character, this
conviction seems substantially right in point of law, though the trial
were not legal in all its forms. For, whether the accusation were
founded on the first or the second command in the Decalogue, or on the
law laid down in the thirteenth chapter of Deuteronomy, or on that in
the eighteenth chapter and the twentieth verse, he had violated them all
by assuming to himself powers belonging alone to Jehovah. It is not easy
to perceive on what ground his conduct could have been defended before
any tribunal, unless upon that of his superhuman character. No lawyer,
it is conceived, would think of placing his defense upon any other
basis."[223]
But, at this point, the reader would do well to discriminate very
carefully between certain matters touching the most vital features of
the controversy. Certain well-defined distinctions must be observed,
else an erroneous conclusion will inevitably follow.
In the first place, proper limitations must be applied to the person and
character of Jesus before it can be truthfully said that His conviction
by the Sanhedrin was "substantially right in point of law." It must be
remembered that, in this connection, Jesus is regarded merely as a man,
"a Jewish citizen," to use Greenleaf's phrase. His divine character, as
the only-begotten Son of God, as the Second Person of the Trinity, as
the Savior of the human race, is not considered. But the reader may
object, and with reason, that this is begging the question; and is
therefore an inexcusable evasion; since the real issue before the
Sanhedrin was this: Is Jesus God? And to strike the Godhead of Jesus
from the discussion is to destroy the real issue, and to place the
judgment of the Sanhedrin upon an irrelevant and immaterial basis. There
is much truth in this contention, since it is clearly evident that if
Jesus was actually God, "manifest in the flesh," He was not guilty; if
He was not God, He was guilty.
Fortunately for the purposes of this treatise, the legality or the
illegality of the proceedings in the trial of Christ is not so much
related to the question of substance as to that of form. Whether Jesus
were God or not is a question involving His divinity, and is a problem
peculiarly within the domain of the theologian. Whether legal rules were
duly observed in the trial of Christ, were He man or God, is a question
involving His civil rights, and belongs to the domain of the lawyer.
Unless this distinction be recognized and held in mind, the treatment of
this theme from a legal standpoint has no justification. This contention
is all the more certainly true, since proof of the divinity of Jesus, a
spiritual problem, would rest more upon the basis of religious
consciousness and experience, than upon historical facts and logical
inferences.
The author of these volumes believes that Jesus was divine, and that if
He was not divine, Divinity has not touched this globe. The writer bases
his conviction of this fact upon the perfect purity, beauty, and
sinlessness of Jesus; upon the overwhelming historical evidence of His
resurrection from the dead, which event "may unhesitatingly be
pronounced that best established in history";[224] as well as upon the
evident impress of a divine hand upon genuine Christian civilization in
every age.
But the historic proofs of the divinity of Christ that have come down to
us through twenty centuries were not before the Sanhedrin. A charitable
Christian criticism will be slow in passing unmerciful judgment upon the
members of that court for denying the claims of Jesus to identify with
God, when His own disciples evidently failed to recognize them. The
incidents of the Last Supper clearly prove that those who had been
intimately associated with Him during three eventful years did not, at
the close of His ministry, fully comprehend His character and appreciate
His message and His mission.[225] Were comparative strangers to Him and
His teachings expected to be more keenly discerning? After John had
baptized Jesus in the Jordan and the Spirit of God, in the form of a
dove, had descended upon Him, the Baptist seems to have had some doubts
of the Messiahship of Christ and sent an embassy to Him to ask, "Art
thou he that should come, or do we look for another?"[226] If the
Forerunner of the Messiah did not know, are we justified in demanding
perfect prescience and absolute infallibility of Caiaphas?
The most perfect proof of the divinity of Jesus is the fact of His
resurrection from the dead, attested by Matthew, Mark, Luke, John,
Peter, James, and Paul. And yet, although He had frequently foretold to
them that He would rise again, Jesus had to personally appear before
them and submit to physical tests before they would believe that His
prophecies had been fulfilled.[227] And it must be remembered that the
great proof of His divinity, His resurrection from the dead, was not
before Caiaphas and his colleagues at the time of the trial.
The preceding suggestions and observations have not been made in order
to excuse or palliate the conduct of the members of the Sanhedrin for
their illegal conduct of the proceedings against Jesus. Under Point XI
of the Brief we shall prove by Jewish testimony alone the utterly wicked
and worthless character of these judges. Under Point XII we shall
elaborate the proofs in favor of the Messiahship of Jesus and of His
divine Sonship of the Father, as far as the scope of this work will
permit. We have suggested above the perplexity of the members of the
Sanhedrin and of the disciples of Jesus, concerning the divinity of the
Nazarene, to illustrate to the reader how futile would be the task of
attempting in a treatise of this kind to settle the question of the
identity of Jesus with God, and thereby fix upon His judges in the
palace of Caiaphas the odium of an unrighteous judgment. The question,
after all, is one to be settled in the forum of conscience, illuminated
by the light of history, and not at the bar of legal justice.
But whether Jesus were man or God, or man-God, we are justified in
passing upon the question of the violation of forms of law which He was
entitled to have observed in the trial of His claims. And at this point
we return to a consideration of the phrase, "substantially right in
point of law." This language is not intended to convey the notion that
Jesus was legally convicted. It means simply that the claim of equality
with God by a plain Jewish citizen was, under Hebrew law, blasphemy; the
crime which Caiaphas and the Sanhedrin believed that Jesus had
confessed, and for which they condemned Him.
Another distinction that must be made is that relating to the kind of
law that is meant, when it is said that the conviction of Jesus was
"substantially right in point of law." Ancient Hebrew law is meant, and
as that law was interpreted from the standpoint of ancient Judaism. The
policy and precepts of the New Dispensation inaugurated by Jesus can
hardly be considered, in a legal sense, to have been binding upon
Caiaphas and the Sanhedrin, since the very claims of Jesus to
Messiahship and identity with God were to be tested by the provisions of
the Mosaic Code and in the light of Hebrew prophecy. The Pentateuch, the
Prophets, and the Talmud were the legal guides, then, of the judges of
Israel in judicial proceedings at this time, and furnished rules for
determining the genuineness of His pretensions.
Mr. Greenleaf, the author of the phrase, "substantially right in point
of law," asserts that the trial was not legal in all its forms, but he
fails to enumerate the errors. The purpose of the Brief in this work is
to name and discuss the errors and irregularities of the Hebrew trial,
that is, the trial before the Sanhedrin.
But the question may be asked: Why be guilty of the inconsistency of
discussing illegalities, when admission has already been made that the
decision was "substantially right in point of law"? The answer is that a
distinction must be made between that which is popularly and
historically known or believed to be true, and that which has not been
or cannot be proved in a court of law. Every lawyer is familiar with
this distinction. The court may know that the accused is guilty, the
jury may know it, the attorneys may be perfectly sure of it, but if the
verdict of guilt returned by the jury into court is not based upon
testimony that came from the witness stand from witnesses who were
under oath, and that had submitted to cross-examination, such verdict
would hardly be sustained on appeal. In other words, the lives and
liberties of alleged criminals must not be endangered by extra-judicial
and incompetent testimony. A legal verdict can be rendered only when a
regular trial has been had before a competent court, having jurisdiction
of the crime charged, and after all legal rules have been observed which
the constitution and the laws have provided as safeguards for the
protection of the rights of both the people and the prisoner. However
heinous the offense committed, no man is, legally speaking, a criminal,
until he has been legally tried and declared a criminal. The presumption
of innocence, a substantial legal right, is thrown around him from the
very beginning, and continues in his favor until it is overthrown by
competent and satisfactory evidence. Unless such evidence is furnished,
under legal forms, no man, however morally guilty, can be denominated a
criminal, in a juristic sense, in the face of the perpetual continuance
of this presumption of innocence.
If these rules and principles be applied to the trial of Jesus, either
before the Sanhedrin or before Pilate, it can be easily demonstrated
that while He might have been abstractly and historically guilty of the
crime of blasphemy, in the wider acceptation of that term, He was not
remotely a criminal, because He was never legally tried and convicted.
In other words, his condemnation was not based upon a legal procedure
that was in harmony with either the Mosaic Code or the Mishna. The
pages of human history present no stronger case of judicial murder than
the trial and crucifixion of Jesus of Nazareth, for the simple reason
that all forms of law were outraged and trampled under foot in the
proceedings instituted against Him. The errors were so numerous and the
proceedings so flagrant that many have doubted the existence of a trial.
Others have sought to attack the authenticity of the Gospel narratives
and the veracity of the Gospel writers by pointing to the number of
errors committed as evidence that no such proceedings ever took place.
As Renan would say, this is a species of "naïve impudence," to assert
that a trial was not had, because numerous errors are alleged; as if a
Hebrew court could not either intentionally or unintentionally commit
blunders and many of them. Every lawyer of extensive practice anywhere
knows from experience that judges of great ability and exalted character
conduct lengthy trials, in both civil and criminal cases, with the most
painstaking care, and are aided by eminent counsel and good and honest
jurors; the whole purpose of the proceedings being to reach a just and
righteous verdict; and yet, on appeal, it is frequently held that not
one but many errors have been committed.
At this point, a few preliminary observations are necessary as a means
of introduction to the discussion of errors. Certain elementary
principles should be clearly understood at the outset. In the first
place, an analysis of the word "case," used in a juristic sense, shows
the existence of two cardinal judicial elements: the element called
Fact, and the element called Law. And whether the advocate is preparing
a pleading at his desk, is making a speech to the jury, or addressing
himself to the court, these elements are ever present in his mind. He is
continually asking these questions: What are the facts of this case?
What is the law applicable to these facts? Do the facts and law meet,
harmonize, blend, according to the latest decision of the court of last
resort? If so, a case is made; otherwise, not.
It is impossible to frame any legal argument upon any other basis than
that of the agreement or nonagreement of law and fact, in a juristic
sense; and upon this plan errors will be discussed and the Brief will be
framed.
In the second place, it must not be forgotten that, in matters of review
on appeal, errors will not be presumed; that is, errors will not be
considered that do not appeal affirmatively upon the record. The law
will rather presume and the court will assume that what should have been
done, has been done. In conformity with this principle, only such errors
will be discussed in these pages that affirmatively appear in the New
Testament Gospels which form the record in this case. By "affirmatively
appear" is meant that the error is clearly apparent or may be reasonably
inferred.
In Part II of the preceding pages of this volume, Hebrew criminal law,
which was actively in force at the time of Christ, was outlined and
discussed. In Part I the Record of Fact was reviewed in the light of
judicial rules. It is the present purpose, in Part III, to enumerate,
in the form of a Brief, the errors committed by the Hebrew judges of
Jesus, as the result of their failure to make the facts of their trial
conform with the legal rules by which they were bound in all criminal
proceedings where human life was at stake. The plan proposed is to
announce successive errors in brief statements which will be designated
"Points," in imitation of the New York method on appeal. Following the
statement of error will be given a short synopsis of the law applicable
to the point suggested. Then, finally, will follow the fact and argument
necessary to elaboration and proof. Accordingly, in pursuance of this
method, let us consider the points in order.
POINT I
THE ARREST OF JESUS WAS ILLEGAL
LAW
"Now the Jewish law prohibited _all proceedings by night_."--DUPIN,
"Jesus Devant Caïphe et Pilate."
"The testimony of an accomplice is not permissible by Rabbinic law
both _propter affectum_ and _propter delictum_, and no man's
_life_, nor his _liberty_, nor his _reputation_ can be endangered
by the malice of one who has confessed himself a
criminal."--MENDELSOHN, "Criminal Jurisprudence of the Ancient
Hebrews," n. 274.
"Thou shalt not go up and down as a talebearer among thy people:
neither shalt thou stand against the blood of thy neighbor. Thou
shalt not hate thy brother in thine heart: Thou shalt not avenge
or bear any grudge against the children of thy people, but thou
shalt love thy neighbor as thyself."--LEVITICUS xix. 17, 18.
FACT AND ARGUMENT
The Bible record discloses three distinct elements of illegality in the
arrest of Jesus: (1) The arrest took place at night in violation of
Hebrew law; (2) it was effected through the agency of a traitor and
informer, in violation of a provision in the Mosaic Code and of a
Rabbinic rule based thereon; (3) it was not the result of a legal
mandate from a court whose intentions were to conduct a legal trial for
the purpose of reaching a righteous judgment. These elements of
illegality will be apparent when the facts of the arrest are briefly
stated.
It was the 14th Nisan, according to the Jewish calendar; or April 6th,
A.D. 30, according to our calendar. The Paschal Feast was at hand. The
eyes of all Israel were centered upon the Metropolis of Judaism. From
Judea, from Samaria, from Galilee and Perea, from all parts of the world
where Jews were resident, pilgrims came streaming into the Holy City to
be present at the great national festival. It was to be an occasion of
prayer and thanksgiving, of sweet memories and happy reunions. Then and
there offerings would be made and purifications obtained. In the great
Temple, with its gorgeous ritual, Judaism was to offer its soul to
Jehovah. The national and religious feelings of a divinely commissioned
race were to be deeply stirred by memories that reminded them of the
first, and by hopes that looked forward to the final great deliverance.
It was probably in the home of Mark, on the outskirts of Jerusalem, that
Jesus gathered with the Twelve, on the evening of this day, to eat the
Paschal lamb. In the Upper Room, the sacred feast was spread and the
little band were gathered. Only the genius of a da Vinci could do
justice to that scene. There was Peter, hot-headed, impetuous,
bravado-like. There was John, as gentle, pure-minded, and loving as a
woman. There was Judas, mercenary, low-browed, and craven-hearted.
There were others who, with Peter and John, were to have temples
dedicated in their names. In their midst was the Master of them all,
"God manifest in the flesh," who "with His pierced hands was to lift
empires off their hinges, and turn the stream of centuries from its
channel." No moment of history was so fraught with tragic interest for
the human race. There the seal of the New Covenant was affixed, the bond
of the new human spiritual alliance was made. The great law of love was
proclaimed which was to regenerate and sanctify the world. "These things
I command you, that ye love one another. And I have declared unto them
thy name, and will declare it; that the love wherewith thou hast loved
me, may be in them, and I in them." Thus the great law of love was to be
the binding tie, not only among the little brotherhood there assembled
but was to be the cementing bond between the regenerate of earth, the
Mediator, and the great Father of love, Himself. There, too, was given
the great example of humility which was to characterize true Christian
piety throughout the ages. The pages of history record no other
spectacle so thrilling and sublime, and at the same time tender and
pathetic, as that afforded by the Paschal Meal, when Jesus, the Savior
of men, the Son of God, the Maker of all the shining worlds, sank upon
His knees to wash the feet of ignorant, simple-minded Galilean
fishermen, in order that future ages might have at once a lesson and an
example of that genuine humility which is the very life and soul of true
religion.
During the evening, a bitter anxiety, an awful melancholy, seized the
devoted band, whose number, thirteen, even to-day inspires superstitious
dread. In the midst of the apprehension the heart of the Master was so
deeply wrung with agony that He turned to those about Him and said:
"Verily, verily, I say unto you that one of you shall betray me." This
prediction only intensified the sadness that had already begun to fall
over the Sacred Meal and the loving disciples began to ask: "Lord, is it
I?" Even the betrayer himself joined with the others, and, with
inconceivable heartlessness and effrontery, asked: "Lord, is it I?" At
the moment of greatest dread and consternation, Peter, bolder than the
rest, leaned across the table and whispered to John, who was resting
upon the bosom of Jesus, and suggested that he ask the Master who it
was. Accordingly, John whispered and asked the Savior: "Lord, who is
it?" "Jesus answered, He it is, to whom I shall give a sop, when I have
dipped it. And when he had dipped the sop, he gave it to Judas Iscariot,
the son of Simon. And after the sop Satan entered into him. Then said
Jesus unto him, That thou doest, do quickly." Judas then arose from the
feast and vanished from the room. When he was gone, the Master began to
deliver to His "little children,"[228] to those who had loved and
followed Him, those farewell words which St. John alone records, and
that are so "rarely mixed of sadness and joys, and studded with
mysteries as with emeralds."
There, too, doubts and fears began to burst from the hearts and lips of
the members of the little company. The knowledge that the gentle Jesus,
whose ministry had thrilled and glorified their simple peasant lives,
and promised to them crowns of glory in the world to come, was about to
leave them, and in a most tragic way, filled them with solicitude and
dread. Their anxiety manifested itself by frequent questioning which
excites our wonder that men who had been with Him so long in the
Apostolic ministry should have been so simple-minded and incredulous.
"They said, therefore, What is this that he saith, A little while? We
cannot tell what he saith." This verse is a simple illustration of the
continued misapprehension, on this night, upon the part of the Apostles,
of everything said by the Master. Peter was anxious to know why he could
not follow the Lord. Thomas wanted to know the exact way, evidently
failing to comprehend the figurative language of the Christ. Judas
Lebbæus also had his doubts. He became muddled by mixing the purely
spiritual with the physical powers of sight. "Lord, how is it," he
asked, "that thou wilt manifest thyself to us and not to the world?"
Philip of Bethsaida desired to see the Father. "Lord, show us the
Father," he said, "and it sufficeth us." Philip seems to have been so
dense that he had no appreciation of the spiritual attributes and
invisible existence of the Father.
It was thus that several hours were spent in celebrating the great
Feast; in drinking wine; in eating the Paschal lamb, the unleavened
bread, and the bitter herbs; in singing hymns, offering prayers, and
performing the sacred rites; in delivering discourses which in every
age have been the most precious treasures of Christians, and in
expressing doubts and fears that have excited the astonishment and even
the ridicule of the exacting and supercilious of all the centuries.
At the approach of midnight, Jesus and the Eleven left the Upper Chamber
of the little house and stepped out into the moonlight of a solemn
Passover night. They began to wend their way toward the Kedron that
separated them from the olive orchard on the Mount. Less than an hour's
journey brought them to the Garden of Gethsemane. The word "Gethsemane"
means "oil press." And this place doubtless derived its name from the
fact that in it was located an oil press which was used to crush olives
that grew abundantly on the trees that crowned the slopes. Whether it
was a public garden or belonged to some friend of Jesus, we do not know,
but certain it is that it was a holy place, a sanctuary of prayer, where
the Man of Sorrows frequently retired to pray and commune with His
Heavenly Father. At the gateway Jesus left eight of the Apostles and
took with Him the other three: Peter, James, and John. These men seem to
have been the best beloved of the Master. They were with Him at the
raising of Jairus' daughter, at the Transfiguration on the Mount, and
were now selected to be nearest Him in the hour of His agony. Proceeding
with them a short distance, He suddenly stopped and exclaimed: "My soul
is exceedingly sorrowful, even unto death: tarry ye here, and watch with
me." Then, withdrawing Himself from them a stone's cast, He sank upon
His knees and prayed; and in the agony of prayer great drops of sweat
resembling blood rolled from His face and fell upon the ground. Rising
from prayer, He returned to His disciples to find them asleep. Sorrow
had overcame them and they were mercifully spared the tortures of the
place and hour. Three times did He go away to pray, and as many times,
upon His return, they were found asleep. The last time He came He said
to them: "Rise, let us be going; behold he is at hand that doth betray
me." At this moment were heard the noise and tramp of an advancing
multitude. "Judas then, having received a band of men and officers from
the chief priests and Pharisees, cometh thither with lanterns and
torches and weapons." This midnight mob, led by Judas, was made up of
Roman soldiers, the Temple guard, and stragglers from along the way. It
is probable that the traitor walked ahead of the mob by several paces.
"And forthwith he came to Jesus, and said, Hail, master, and kissed him
and Jesus said unto him, Friend, wherefore art thou come? Then came they
and laid hands on Jesus and took him." But the arrest was not
accomplished without incidents of pathos and of passion. "Whom seek ye?"
asked the Master. "Jesus of Nazareth," they answered. "I am he," replied
the Savior. Then, dazed and bewildered, they fell backward upon the
ground. "Then asked he them again, whom seek ye? and they said, Jesus of
Nazareth. Jesus answered, I have told you that I am he: if, therefore,
ye seek me, let these go their way." John says that this intercession
for the disciples was to the end that prophecy might be fulfilled.[229]
Doubtless so; but this was not all. Nowhere in sacred literature do we
find such pointed testimony to the courage and manliness of Jesus. His
tender solicitude for the members of the little band, for those who had
quit their homes and callings to link their destinies with His, was here
superbly illustrated. He knew that He was going to immediate
condemnation and then to death, but He ardently desired that they should
be spared to live. And for them He threw Himself into the breach.
The furious and the passionate, as well as the tender and pathetic, mark
the arrest in the garden. "Then Simon Peter having a sword drew it, and
smote the high priest's servant, and cut off his right ear. The
servant's name was Malchus." This was bloody proof of that fidelity
which Peter loudly proclaimed at the banquet board, but which was soon
to be swallowed up in craven flight and pusillanimous denial.
"Then the band and the captain and officers of the Jews took Jesus, and
bound him."
At this point the arrest was complete, and we now return to the
discussion of the illegalities connected with it.
It was a well-established and inflexible rule of Hebrew law that
proceedings in capital trials could not be had at night. This provision
did not apply simply to the proceedings of the trial after the prisoner
had been arraigned and the examination had been begun. We have it upon
the authority of Dupin that it applied to the entire proceedings, from
the arrest to the execution. The great French advocate explicitly states
that the arrest was illegal because it was made at night.[230] Deference
to this rule seems to have been shown in the arrest of Peter and John on
another occasion. "And they laid hands upon them and put them in hold
unto the next day: for it was now _eventide_."[231] That Jesus was
arrested at night is clearly evident from the fact that those who
captured Him bore "_lanterns_ and _torches_ and _weapons_."
The employment of Judas by the Sanhedrin authorities constitutes the
second element of illegality in the arrest. This wretched creature had
been numbered among the Twelve, had been blessed and honored, not merely
with discipleship but with apostleship, had himself been sent on holy
missions by the Master, had been given the power to cast out devils, had
been appointed by his Lord the keeper of the moneys of the Apostolic
company, and, if Edersheim is to be believed, had occupied the seat of
honor by the Master at the Last Supper.[232] This craven and cowardly
Apostate was employed by the Sanhedrin Council to betray the Christ. It
is clearly evident from the Scriptures that the arrest of Jesus would
not have taken place on the occasion of the Passover, and therefore
probably not at all, if Judas had not deserted and betrayed Him. The
Savior had appeared and preached daily in the Temple, and every
opportunity was offered to effect a legal arrest on legal charges with
a view to a legal determination. But the enemies of Jesus did not want
this. They were waiting to effect His capture in some out-of-the-way
place, at the dead of night, when His friends could not defend Him and
their murderous proceedings would not reach the eye and ear of the
public. This could not be accomplished as long as His intimates were
faithful to Him. It was, then, a joyful surprise to the members of the
Sanhedrin when they learned that Judas was willing to betray his Master.
"And when they heard it, they were glad, and promised to give him
money."
In modern jurisdictions, accomplice testimony has been and is allowed.
The judicial authorities, however, have always regarded it with
distrust, and we might say with deep-seated suspicion. At the common law
in England a conviction for crime might rest upon the uncorroborated
testimony of an accomplice, after the jury had been warned that such
testimony was to be closely scrutinized. In the American States the
testimony of an accomplice is admissible, but must be corroborated in
order to sustain a conviction. This is the general rule. The weakness of
such evidence is shown by the nature of the corroboration required by
several states. In some of them the corroborating testimony must not
only tend to prove the commission of the crime but must also tend to
connect the defendant with such commission. Another evidence of the
untrustworthiness of such testimony is that in several states an
accomplice is not permitted to corroborate another accomplice, so as to
satisfy the statutes.[233] The admission of such testimony seems to
rest, in great measure, upon the supreme necessity of the preservation
of the state, which is only possible when the punishment of crime is
possible; and in very many instances it would be impossible to punish
crime if guilty confederates were not allowed and even encouraged to
give state's evidence.
But notwithstanding this supreme consideration of the necessity of the
preservation of the state, the ancient Hebrews forbade the use of
accomplice testimony, as we have seen from the extract from "The
Criminal Jurisprudence of the Ancient Hebrews," by Mendelsohn, cited on
page 219.
The arrest of Jesus was ordered upon the supposition that He was a
criminal; this same supposition would have made Judas, who had aided,
encouraged, and abetted Jesus in the propagation of His faith, an
accomplice. If Judas was not an accomplice, Jesus was innocent, and His
arrest was an outrage, and therefore illegal.
The Hebrew law against accomplice testimony must have been derived, in
part at least, from the following rule laid down in Leviticus xix.
16-18: "Thou shalt not go up and down as a talebearer among thy people:
neither shall thou stand against the blood of thy neighbor. Thou shalt
not hate thy brother in thine heart: Thou shalt not avenge, or bear any
grudge against the children of thy people, but thou shalt love thy
neighbor as thyself." It may be objected that this is only a moral
injunction and not a legal rule; to which reply must be made that there
was no difference between morality and law among the ancient Hebrews.
Their religion was founded upon law, and their law upon religion. The
two ideas of morality and law were inseparable. The ancient Hebrew
religion was founded upon a contract of the strictest legal kind. The
Abrahamic covenant, when properly interpreted, meant simply that Jehovah
had agreed with the children of Israel that if they would obey the law
as He gave it, they would be rewarded by Him. The force of this
contention will be readily perceived when it is reflected that the
Decalogue is nothing but ten moral injunctions, which are nevertheless
said to be the law which God gave to Moses.
Every provision in the rule laid down in Leviticus is, moreover,
directly applicable to the character and conduct of Judas, and seems to
have been intended as a prophetic warning to him. Let us consider the
different elements of this rule in order.
"Thou shalt not go up and down as a talebearer among thy people."
Was not Judas a talebearer among his people? Did he not go to the chief
priests to betray his Master unto them? Was he not a "talebearer" if he
did nothing more than communicate to the chief priests the whereabouts
of the Savior, that Gethsemane was His accustomed place of prayer and
that He might be found and arrested there at midnight? Are we not
justified in supposing that Judas told the enemies of Jesus much more
than this? Is it not reasonable to infer that the blood-money was paid
to secure more evidence than that which would merely lead to the arrest
of the Nazarene? Is it not probable that Judas detailed to the chief
priests many events in the ministry of Jesus which, it is known, He
communicated only to the Twelve? If he did these things, was he not a
"talebearer" within the meaning of the rule?
"Neither shalt thou stand against the blood of thy neighbor."
Did not Judas stand against the blood of his nearest and dearest
neighbor when he consented to be the chief instrument of an arrest which
he knew would result in death?
"Thou shalt not hate thy brother in thy heart."
Is it possible to suppose that anything less than hatred could have
induced Judas to betray the Christ? This question is important, for it
involves a consideration of the real character of the betrayer and the
main motive for the betrayal. Judas was from Kerioth in Judea and was
the only Judean among the Twelve. Why Judas was selected as a member of
the Apostolic company is too deep a mystery to be solved by the author
of these pages. Besides, the consideration of the elements of
predestination in his case is foreign to the purpose of this work. His
character as a purely human agency is sufficient to answer the present
design. Judas had undoubtedly demonstrated business capacity in some way
before his appointment to the treasury portfolio of the little band. It
cannot be doubted that greed was his besetting sin. This trait, coupled
with political ambition, undoubtedly accounts for his downfall and
destruction. He was one of those simple-minded, short-sighted
individuals of his day who believed that a political upheaval was at
hand which would result in the restoration of the independence of Israel
as a separate kingdom. He believed that this result would be brought
about through the agency of a temporal Messiah, an earthly deliverer of
almost divine qualities. He thought at first that he saw in Jesus the
person of the Messiah, and in the Apostolic band the nucleus of a
revolution. He was gratified beyond measure at his appointment to the
treasury position, for he felt sure that from it promotion was in sight.
He was perfectly contented to carry for a while the "little bag,"
provided there was reasonable assurance that later on he would be
permitted to carry a larger one.
As the months and years rolled by, heavy scales began to fall from his
stupid eyes and he began to be deceived not by but in Jesus. We are
justified in believing that Judas never even remotely appreciated the
spiritual grandeur of the Christ. He probably had intellect and soul
enough to be charmed and fascinated by the lofty bearing and eloquent
discourse of Jesus, but after all he perceived only the necessary
qualifications of a great republican leader and successful
revolutionist. And after a while he doubtless began to tire of all this
when he saw that the revolution was not progressing and that there was
no possibility of actual and solid results. It is probable that
disaffection and treachery were born and began to grow in his mind and
heart at Capernaum, when Jesus was deserted by many of His followers and
was forced to effect a realignment along spiritual lines. Judas was not
equal to the spiritual test, and it was doubtless then that the
disintegration of his moral nature began, which stopped only with
betrayal, infamy, and death.
But by what process, we may ask, was the mercenary disposition of Judas
converted into hatred against Jesus? The process was that of
disappointment. When Judas became convinced that all the years of his
connection with the Apostolic company had been lost, his will became
embittered and his resentment was aroused. In the denseness of his
ignorance and in the baseness of his soul he probably thought that Jesus
had deceived His followers as to His true mission and he felt enraged
because he had been duped. He had looked forward to worldly promotion
and success. He had fondly hoped that the eloquence of Jesus would
finally call around Him an invincible host of enthusiastic adherents who
would raise the standard of revolt, drive the Romans from Judea, and
establish the long-looked-for kingdom of the Jews. He had noted with
deep disappointment and unutterable chagrin the failure of Jesus to
proclaim Himself king when, at Bethphage, the multitude had greeted His
entrance into Jerusalem with Hosannas and acclamations. And now, at the
Last Supper, he became convinced from the conduct and discourses of the
Master that his worst fears were true, that Jesus was sincere in His
resolution to offer Himself as a sacrifice for the sake of a principle
which he, Judas, did not approve because he could not understand. In
other words, he witnessed in the resolve of Jesus to die at once the
shipwreck of his hopes, and he made haste to vent his wrath upon the
author of his disappointment.
The writer agrees with Renan that the thirty pieces of silver were not
the real or leading inducement to this black and monumental betrayal.
Having taken the fatal step, by leaving the Upper Room in the home of
Mark, to deliver his Lord and Master into the hands of enemies, a bitter
hatred was formed at once against the innocent victim of his foul
designs, on the well-known principle of human nature that we hate those
who have induced us to do that which causes us to despise and hate
ourselves.
"Thou shalt not avenge or bear any grudge against the children of thy
people."
Where, in the annals of the universe, do we find another such case of
vengeance and grudge as this of Judas against Jesus?
"But thou shalt love thy neighbor as thyself."
This commandment of the Mosaic law was also the great commandment of the
Master of Galilee, and in violating it by consenting to betray and
sacrifice Jesus, Judas assaulted and destroyed in his own soul the
cardinal principle of the two great religious dispensations of his race.
And yet this informer, conspirator, and malefactor was employed by the
chief priests in effecting the arrest of Jesus. Was not a fundamental
rule of Mosaic law violated? Will it be urged that the rule operated
against Judas but not against the chief priests? If so, it must be
remembered that no wicked instrument could be used in promoting Hebrew
justice. Officers of the law were not permitted to require a citizen to
do an act which was forbidden by law. If Jesus was innocent, then the
arrest was illegal. If He was guilty, then Judas, his Apostle and
fellow-worker, was an accomplice; and no accomplice could be utilized in
furtherance of justice, under Hebrew law, either in the matter of arrest
or in the establishment of guilt as a witness at the trial.
According to the Talmud, there was at least one seeming exception to
this rule. Renan describes it with peculiar clearness and succinctness.
"The procedure," he says, "against the 'corrupter' (mesith), who sought
to attaint the purity of religion, is explained in the Talmud, with
details, the naïve impudence of which provokes a smile. A judicial
ambush is therein erected into an essential part of the examination of
criminals. When a man was accused of being a 'corrupter,' two witnesses
were suborned who were concealed behind a partition. It was arranged to
bring the accused into a contiguous room, where he could be heard by
these two witnesses without his perceiving them. Two candles were
lighted near him, in order that it might be satisfactorily proved that
the witnesses 'saw him.' (In criminal matters, eyewitnesses alone were
admitted. Mishna, Sanhedrin VI, 5.) He was then made to repeat his
blasphemy; next urged to retract it. If he persisted, the witnesses who
had heard him conducted him to the Tribunal and he was stoned to death.
The Talmud adds that this was the manner in which they treated Jesus;
that he was condemned on the faith of two witnesses who had been
suborned, and that the crime of 'corruption' is, moreover, the only one
for which the witnesses are thus prepared."[234]
Most Gentile writers ridicule this statement of the Talmud, and maintain
that it was a Rabbinic invention of post-Apostolic days, and was
intended to offer an excuse for the outrageous proceedings against the
Christ. Schürer dismisses the whole proposition with contempt. Many
Jewish scholars also refuse it the sanction of their authority. But even
if it was a Talmudic rule of law in force at the time of Christ, its
constitutionality, so to speak, might be questioned, in the first place;
since it was, in spirit at least, repugnant to and subversive of the
Mosaic provision in Leviticus cited above. It must not be forgotten that
the Mosaic Code was the constitution, the fundamental law of Judaism, by
which every Rabbinic interpretation and every legal innovation was to be
tested.
Again, such a law would have been no protection to the chief priests and
to Judas against the operation of this Mosaic injunction. If such a rule
of procedure could be justified upon any ground, it would require
disinterested men acting from honorable motives, in promoting the
maintenance of law and order. Officers of the law have sometimes, as
pretended accomplices, acted in concert with criminals in order to
secure and furnish evidence against them. But they were officers of the
law, and the courts have held that their evidence was not accomplice
testimony requiring corroboration. It is very clear that Judas was not
such a disinterested witness, acting in the interest of public justice.
He was a fugitive from the Last Supper of his Master, a talebearer
within the meaning of the provision in Leviticus; and his employment by
the Sanhedrin was a violation of a fundamental provision in the Mosaic
Code.
The third illegality in the arrest of Jesus was that His capture was not
the result of a legal mandate from a court whose intentions were to
conduct a legal trial for the purpose of reaching a righteous judgment.
"This arrest," says Rosadi, "effected in the night between Thursday and
Friday, the last day of the life of Jesus, on Nisan 14, according to the
Hebrew calendar, was the execution of an illegal and factious resolution
of the Sanhedrin. There was no idea of apprehending a citizen in order
to try him upon a charge which after sincere and regular judgment might
be found just or unfounded; the intention was simply to seize a man and
do away with him. The arrest was not a preventive measure such as might
lawfully precede trial and condemnation; it was an executive act,
accomplished in view of a sentence to be pronounced without legal
justification."
POINT II
THE PRIVATE EXAMINATION OF JESUS BEFORE ANNAS (OR CAIAPHAS) WAS ILLEGAL
LAW
"Now the Jewish law prohibited _all proceedings by night_."--DUPIN,
"Jesus Devant Caïphe et Pilate."
"Be not a sole judge, for there is no sole judge but One."--MISHNA,
Pirke Aboth IV. 8.
"A principle perpetually reproduced in the Hebrew scriptures relates
to the two conditions of _publicity_ and liberty. An accused man
was never subjected to private or secret examination, lest, in his
perplexity, he furnish damaging testimony against
himself."--SALVADOR, "Institutions de Moïse," pp. 365, 366.
FACT AND ARGUMENT
The private examination before Annas (or Caiaphas) was illegal for the
following reasons: (1) The examination was conducted at night in
violation of Hebrew law; (2) no judge or magistrate, sitting alone,
could interrogate an accused judicially or sit in judgment upon his
legal rights; (3) private preliminary examinations of accused persons
were not allowed by Hebrew law.
The general order of events following the arrest in the garden was
this: (1) Jesus was first taken to the house of Annas; (2) after a brief
delay He was sent by Annas to Caiaphas, the high priest, in whose palace
the Sanhedrin, or a part thereof, had already assembled; (3) He was then
brought before this body, tried and condemned; (4) He remained, during
the rest of the night, in the high priest's palace, exposed to the
insults and outrages of His keepers; and was finally and formally
sentenced to death by the Sanhedrin which reconvened at the break of
day.
That Jesus was privately examined before His regular trial by the
Sanhedrin is quite clear. But whether this preliminary examination took
place before Annas or Caiaphas is not certainly known. John alone
records the private interrogation of Jesus and he alone refers to Annas
in a way to connect him with it. This Evangelist mentions that they "led
him away to Annas first."[235] Matthew says that after the arrest of
Jesus, they "led him away to Caiaphas the high priest,"[236] without
mentioning the name of Annas. Mark tells us that "they led Jesus away to
the high priest";[237] but he does not mention either Annas or Caiaphas.
Luke records that they "took him, and led him, and brought him into the
high priest's house,"[238] without telling us the name of the high
priest.
"The high priest then asked Jesus of his disciples and of his
doctrine."[239] This was the beginning of the examination. But who was
the examiner--Annas or Caiaphas? At first view we are inclined to
declare that Caiaphas is meant, because he was undoubtedly high priest
in that year. But Annas is also designated as high priest by Luke in
several places.[240] In Acts iv. 6 he mentions Caiaphas without an
official title, but calls Annas high priest. It is therefore not known
to whom John refers when he says that the "high priest asked Jesus of
his disciples and of his doctrine." For a lengthy discussion of this
point, the reader is referred to Andrews's "Life of Our Lord," pp.
505-510.
But it is absolutely immaterial, from a legal point of view, whether it
was Annas or Caiaphas who examined Jesus, as the proceedings would be
illegal in either case. For whether it was the one or the other, neither
had the right to sit alone as judge; neither had the right to conduct
any judicial proceeding at night; neither had the right to institute a
secret preliminary examination by day or night.
Attention has been called to the matter as involving a question of
historical rather than of legal consequence. A knowledge of the true
facts of the case might, however, throw light upon the order and
connection of the proceedings which followed the same night. For if the
private examination recorded by John was had before Annas, it was
doubtless separated by a certain interval of place and time from the
later proceedings before Caiaphas. Then it is reasonable to suppose that
the examination of witnesses, the confession and condemnation which took
place at the regular trial before the Sanhedrin over which Caiaphas
presided, happened later in the night, or even toward morning, and
were of the nature of a regular public trial. If, on the other hand,
Annas sent Jesus without delay to Caiaphas, who examined Him, it is
reasonable to conclude that witnesses were at once produced, and that
the adjuration and condemnation immediately followed. If such were the
case, a considerable interval of time must have intervened between these
proceedings and the meeting of the Sanhedrin which was had in the
morning to confirm the judgment which had been pronounced at the night
session. But these considerations are really foreign to the question of
legal errors involved, which we come now to discuss.
[Illustration: JESUS IN GETHSEMANE (HOFFMAN)]
In the first place, the private examination of Jesus, whether by Annas
or Caiaphas, took place at night; and we have learned from Dupin that
_all proceedings at night in capital cases_ were forbidden.
In the second place, no judge or magistrate, sitting alone, could
interrogate an accused person judicially or sit in judgment upon his
legal rights. We have seen in Part II of this volume that the Hebrew
system of courts and judges provided no single magistrates who, sitting
alone, could adjudicate causes. The lowest Hebrew court consisted of
three judges, sometimes called the Court of Three. The next highest
tribunal was the Minor Sanhedrin of three-and-twenty members. The
supreme tribunal of the Jews was the Great Sanhedrin of seventy-one
members. There was no such thing among the ancient Hebrews as a court
with a single judge. "Be not a sole judge, for there is no sole judge
but One," is one of the most famous aphorisms of the Pirke Aboth. The
reason of this rule is founded not only in a religious exaction born of
the jealousy of Jehovah, but in the principle of publicity which
provides for the accused, in the very number of judges, a public
hearing. The same principle is suggested by the number of witnesses
required by both the Mishna and Mosaic Code for the conviction of a
prisoner. At least "two or three witnesses" were required to appear
publicly and give testimony against the accused, else a conviction could
not follow.
Again, preliminary examinations of accused persons were not allowed by
Hebrew law. In the American states and in some other countries, a man
suspected of crime and against whom an information or complaint has been
lodged, is frequently taken before an examining magistrate to determine
whether he should be discharged, admitted to bail, or sent to prison to
await the action of a Grand Jury. At such hearing, the prisoner is
usually notified that he is at liberty to make a statement regarding the
charge against him; that he need not do so unless he desires; but that
if he does, his testimony may be subsequently used against him at the
regular trial of the case. But such proceedings, according to Salvador,
were forbidden by ancient Hebrew law. The preliminary examination,
therefore, by Annas or Caiaphas was illegal. The reason of the rule, as
above stated, was to protect the prisoner against furnishing evidence
that might be used against him at the regular trial of his case. The
private examination of Jesus illustrates the justice of the rule and the
necessity of its existence, for it was undoubtedly the purpose of Annas
or Caiaphas to gather material in advance to lay before the regularly
assembled Sanhedrin and thereby expedite the proceedings at the expense
of justice.
If it be contended that the leading of Jesus to Annas first, which St.
John alone relates, was merely intended to give the aged Sanhedrist an
opportunity to see the prisoner who had been causing such commotion in
the land for several years; and that there was no examination of Jesus
before Annas--the interrogation by the high priest concerning the
disciples and the doctrine of Jesus being construed to refer to an
examination by Caiaphas, and being identical with the night trial
referred to by Matthew and Mark--reply may be made that, under any
construction of the case, there was at least an illegal appearance
before Annas, as mere vulgar curiosity to see a celebrated prisoner was
no excuse for the violation of the spirit if not the letter of the law.
It is inconceivable, however, to suppose that Annas did not actually
interrogate Jesus concerning His disciples, His doctrine, and His
personal pretensions. To suppose that he demanded to see Jesus for no
other reason than to get an impression of His looks, is to insult common
sense. If Annas examined the prisoner, though only slightly, concerning
matters affecting the charges against Him that might endanger His life
or liberty, he had violated a very important rule of Hebrew criminal
procedure. The question of the amount of examination of the accused is
immaterial.
It is not known whether Annas at this time sat in the Great Sanhedrin
as a judge. He had been deposed from the high priesthood nearly twenty
years before by the procurator Valerius Gratus, for imposing and
executing capital sentences. But he was, nevertheless, still
all-powerful in the great Council of the Jews. Edersheim says that
though "deprived of the Pontificate, he still continued to preside over
the Sanhedrin."[241] Andrews is of the opinion that "he did in fact hold
some high official position, and this probably in connection with the
Sanhedrin, perhaps as occasional president."[242] Basing his criticism
upon the words in Luke, "Annas and Caiaphus being the high
priests,"[243] Dr. Plummer believes "that between them they discharged
the duties, or that each of them in different senses was regarded high
priest, Annas _de jure_, and Caiaphas _de facto_."[244] This is a mere
supposition, however, since there is no historical evidence that Annas
was restored to the pontificate after his deposition by Valerius Gratus,
A.D. 14.[245] The phrase, "Annas and Caiaphas being high priests,"
refers to the fifteenth year of the reign of Tiberius Cæsar, which was
A.D. 26.
After all, it is here again an historical more than a legal question,
whether Annas was an official or not at the time of the appearance of
Jesus before him. In either case his preliminary examination of the
Christ was illegal. If he was a member of the Sanhedrin, the law forbade
him to hold an informal preliminary examination at night. He certainly
could not do this while sitting alone. If he was not a magistrate, as
Dupin very properly contends, this fact only added to the seriousness of
the illegality of subjecting a prisoner to the whimsical examination of
a private citizen.
Whether a member of the Sanhedrin or not, Annas was at the time of
Christ and had been for many years its dominating spirit. He himself had
been high priest. Caiaphas was his son-in-law, and was succeeded in the
high priesthood by four sons of Annas. The writer does not believe that
Annas had any legal connection with the Sanhedrin, but, like many
American political bosses, exercised more authority than the man that
held the office. He was simply the political tool of the Roman masters
of Judea, and the members of the Sanhedrin were simply figureheads under
his control.
Again, the private examination of Jesus was marked by an act of
brutality which Hebrew jurisprudence did not tolerate. This was not
enumerated above as an error, because it was not probably a violation of
any specific rule of law. But it was an outrage upon the Hebrew sense of
justice and humanity which in its normal state was very pure and lofty.
"The high priest then asked Jesus of his disciples and of his doctrine.
Jesus answered him, I spake openly to the world; I ever taught in the
Synagogue, and in the Temple, whither the Jews always resort; and in
secret have I said nothing. Why askest thou me? ask them which heard me,
what I have said unto them: behold, they know what I said." In this
reply Jesus planted Himself squarely upon His legal rights as a Jewish
citizen. "It was in every word the voice of pure Hebrew justice, founded
upon the broad principle of their judicial procedure and recalling an
unjust judge to the first duty of his great office."
"And when he had thus spoken, one of the officers which stood by struck
Jesus with the palm of his hand, saying, Answerest thou the high priest
so?" Again the Nazarene appealed for protection to the procedure
designed to safeguard the rights of the Hebrew prisoner. "Jesus answered
him, If I have spoken evil, bear witness of the evil: but if well, why
smitest thou me?"[246]
We have seen that, under Hebrew law, the witnesses were the accusers,
and their testimony was at once the indictment and the evidence. We have
also seen that a Hebrew prisoner could not be compelled to testify
against himself, and that his uncorroborated confession could not be
made the basis of a conviction. "_Why askest thou me? ask them that
heard me_, what I have said unto them." This was equivalent to asking:
Do you demand that I incriminate myself when our law forbids such a
thing? Why not call witnesses as the law requires? If I am an evil-doer,
bear witness of the evil, that is, let witnesses testify to the
wrongdoing, that I may be legally convicted. If I am not guilty of a
crime, why am I thus maltreated?
Is it possible to imagine a more pointed and pathetic appeal for justice
and for the protection of the law against illegality and brutal
treatment? This appeal for the production of legal testimony was not
without its effect. Witnesses were soon forthcoming--not truthful
witnesses, indeed--but witnesses nevertheless. And with the coming of
these witnesses began the formal trial of the Christ, and a formal
trial, under Hebrew law, could be commenced only by witnesses.
POINT III
THE INDICTMENT AGAINST JESUS WAS, IN FORM, ILLEGAL
LAW
"The entire criminal procedure of the Mosaic Code rests upon four
rules: _certainty in the indictment_; publicity in the discussion;
full freedom granted to the accused; and assurance against all
dangers or errors of testimony."--SALVADOR, "Institutions de
Moïse," p. 365.
"_The Sanhedrin did not and could not originate charges_; it only
investigated those brought before it."--EDERSHEIM, "Life and Times
of Jesus the Messiah," vol. i. p. 309.
"_The evidence of the leading witnesses constituted the charge._
There was no other charge: no more formal indictment. Until they
spoke, and spoke in the public assembly, the prisoner was scarcely
an accused man. When they spoke, and the evidence of the two
agreed together, it formed the legal charge, libel, or indictment,
as well as the evidence for its truth."--INNES, "The Trial of
Jesus Christ," p. 41.
"The only _prosecutors_ known to Talmudic criminal jurisprudence are
the witnesses to the crime. Their duty is to bring the matter to
the cognizance of the court, and to bear witness against the
criminal. In capital cases, they are the legal executioners also.
Of an official accuser or prosecutor there is nowhere any trace in
the laws of the ancient Hebrews."--MENDELSOHN, "The Criminal
Jurisprudence of the Ancient Hebrews," p. 110.
FACT AND ARGUMENT
The Gospel records disclose two distinct elements of illegality in the
indictment against Jesus: (1) The accusation, at the trial, was twofold,
vague, and indefinite, which Mosaic law forbade; (2) it was made, in
part, by Caiaphas, the high priest, who was one of the judges of Jesus;
while Hebrew law forbade any but leading witnesses to present the
charge.
A thorough understanding of Point III depends upon keeping clearly in
mind certain well-defined elementary principles of law. In the first
place, it should be remembered that in most modern jurisdictions an
indictment is simply an accusation, carries with it no presumption of
guilt, and has no evidentiary force. Its only function is to bring the
charge against the prisoner before the court and jury, and to notify the
accused of the nature of the accusation against him. But not so under
the ancient Hebrew scheme of justice. Under that system there was no
such body as the modern Grand Jury, and no committee of the Sanhedrin
exercised similar accusatory functions. The leading witnesses, and they
alone, presented charges. It follows then, of necessity, that the
ancient Hebrew indictment, unlike the modern indictment, carried with it
a certain presumption of guilt and had certain evidentiary force. This
could not be otherwise, since the testimony of the leading witnesses
was at once the indictment and the evidence offered to prove it.
Again, in the very nature of things an indictment should, and under any
enlightened system of jurisprudence, does clearly advise the accused of
the exact nature of the charge against him. Under no other conditions
would it be possible for a prisoner to prepare his defense. Most modern
codes have sought to promote clearness and certainty in indictments by
requiring the charging of only one crime in one indictment, and in
language so clear and simple that the nature of the offense charged may
be easily understood.
Now Salvador says that "certainty in the indictment" was one of the
cardinal rules upon which rested the entire criminal procedure of the
Mosaic Code. Was this rule observed in framing the accusation against
Jesus at the night trial before the Sanhedrin? If so, the Gospel records
do not disclose the fact. It is very certain, indeed, that the learned
of no age of the world since the crucifixion have been able to agree
among themselves as to the exact nature of the indictment against the
Christ. This subject was too exhaustively discussed in the beginning of
the Brief to warrant lengthy treatment here. Suffice it to say that the
record of the night trial before Caiaphas discloses two distinct
charges: the charge of sedition--the threat to destroy a national
institution and to seduce the people from their ancient allegiance, in
the matter of the destruction of the Temple; and the charge of blasphemy
preferred by Caiaphas himself in the adjuration which he administered to
Jesus. When the false witnesses failed to agree, their contradictory
testimony was rejected and the charge of sedition was abandoned. And
before Jesus had time to answer the question concerning sedition,
another distinct charge, that of blasphemy, was made in almost the same
breath.[247] Did this procedure tend to promote "certainty in the
indictment"? Did it not result in the complete destruction of all
clearness and certainty? Are we not justified in supposing that the
silence of Jesus in the presence of His accusers was at least partially
attributable to His failure to comprehend the exact nature of the
charges against Him?
Again, the accusation was, in part, by Caiaphas, the high priest, who
was also one of the judges of Jesus;[248] while Hebrew law forbade any
but leading witnesses to present the charge. Edersheim tells us that
"the Sanhedrin did not and could not originate charges; it only
investigated those brought before it." If the Sanhedrin as a whole could
not originate charges, because its members were judges, neither could
any individual Sanhedrist do so. When the witnesses "agreed not
together" in the matter of the charge of sedition, this accusation was
abandoned. Caiaphas then deliberately assumed the rôle of accuser, in
violation of the law, and charged Jesus, in the form of an adjuration,
with blasphemy, in claiming to be "the Christ, the Son of God."
Confession and condemnation then followed. Only leading witnesses could
prefer criminal charges under Hebrew law. Caiaphas, being a judge, could
not possibly be a witness; and could not, therefore, be an accuser.
Therefore, the indictment against Jesus was illegally presented.
The writer believes that the above is a correct interpretation of the
nature and number of the charges brought against the Christ, and that
the legal aspects of the case are as above stated. But candor and
impartiality require consideration of another view. Several excellent
writers have contended that there were, in fact, not two charges
preferred against Jesus but only one under different forms. These
writers contend that Caiaphas and his colleagues understood that Jesus
claimed supernatural power and identity with God when He declared that
He was _able_ to destroy the Temple and to build it again in three
days,[249] and that the question of the high priest, "I adjure thee by
the living God, that thou tell us whether thou be the Christ, the Son of
God," flowed naturally from and had direct reference to the charge of
being able to destroy the Temple. The advocates of this view appeal to
the language of the original auditors to sustain their contention.
"Forty-and-six years was this temple in building, and wilt thou rear it
again in three days?" It is insisted that these words convey the idea
that those who heard Jesus understood Him to mean that He had
supernatural power. There is certainly much force in the contention but
it fails to meet other difficulties. In the first place, it is not clear
that a threat to destroy the Temple implied a claim to supernatural
power; in which case there would be no connection between the first
charge and that in which it was suggested that Jesus had claimed to be
the Christ, the Son of God. In the second place, the contention that the
two charges are substantially the same ignores the language of Mark,
"But neither so did their witness agree together,"[250] which was
certainly not injected by the author of the second Gospel as a matter of
mere caprice or pastime. This language, legally interpreted, means that
the testimony of the false witnesses, being contradictory, was thrown
aside, and that the charge concerning the destruction of the Temple was
abandoned. This is the opinion of Signor Rosadi and is very weighty.
Those writers who maintain that there was only one charge, that of
blasphemy, under different forms, rely upon the passage in Matthew, "I
am _able_ to destroy the temple of God and to build it again in three
days," and interpret it as a claim to supernatural power in the light of
the language used by those who heard it: "Forty-and-six years was this
temple in building, and wilt thou rear it again in three days?" Those
who hold the opposite view, that there were two distinct charges, rely
upon the passage in Mark, "I _will_ destroy this temple that is made
with hands, and within three days I will build another made without
hands," and interpret it in the light of a similar accusation against
Stephen a few months afterwards: "For we have heard him say, that this
Jesus of Nazareth _shall destroy this place_, and _shall change the
customs_ which Moses delivered us."[251] This second interpretation,
which we believe to be the better, establishes the existence at the
trial of Christ of two distinct charges: that of sedition, based upon a
threat to assault existing institutions; and that of blasphemy, founded
upon the claim of equality with God. And, in the light of this
interpretation, the illegality in the form of the indictment against
Jesus has been urged.
If the first construction be the true one, then the error alleged in
Point III is not well founded, since the accusation was presented by
witnesses, as the law required; unless it could be successfully urged
that the witnesses, being _false_ witnesses, were no more competent to
accuse a prisoner than to convict him upon their false testimony. In
such a case the substance as well as the form of the indictment would be
worthless, and the whole case would fall, through failure not only of
competent testimony to convict but also of a legal indictment under
which to prosecute.
Neither the Mishna nor the Gemara mentions written indictments among the
ancient Hebrews. "The Jewish Encyclopedia" says that accusations were
probably in writing, but that it is not certain.[252] A passage in
Salvador seems to indicate that they were in writing. "The papers in the
case," he says, "were read, and the accusing witnesses were then
called." "The papers" were probably none other than the indictment. But
of this we are not sure, and cannot, therefore, predicate the allegation
of an error upon it. From the whole context of the Scriptures, however,
we are led to believe that only oral charges were preferred against
Jesus.
POINT IV
THE PROCEEDINGS OF THE SANHEDRIN AGAINST JESUS WERE ILLEGAL BECAUSE THEY
WERE CONDUCTED AT NIGHT
LAW
"Let a capital offence be tried during the day, but suspend it at
night."--MISHNA, Sanhedrin IV. 1.
"Criminal cases can be acted upon by the various courts during day
time only, by the Lesser Synhedrions from the close of the morning
service till noon, and by the Great Synhedrion till
evening."--MENDELSOHN, "Criminal Jurisprudence of the Ancient
Hebrews," p. 112.
"The reason why the trial of a capital offense could not be held at
night is because, as oral tradition says, the examination of such
a charge is like the diagnosing of a wound--in either case a more
thorough and searching examination can be made by
daylight."--MAIMONIDES, Sanhedrin III.
FACT AND ARGUMENT
HEBREW jurisprudence positively forbade the trial of a capital case at
night. The infraction of this rule involves the question of
jurisdiction. A court without jurisdiction can pronounce no valid
verdict or judgment. A court has no jurisdiction if it convenes and
acts at a time forbidden by law.
One is naturally disposed to deride the reason assigned by Maimonides
for the existence of the law against criminal proceedings at night. But
it should not be forgotten that in the olden days surgery had no such
aids as are at hand to-day. Modern surgical apparatus had not been
invented and electric lights and the Roentgen Rays were unknown. In the
light of this explanation of the great Jewish philosopher the curious
inquirer after the real meaning of things naturally asks why the
Areopagus of Athens always held its sessions in the night and in the
dark.[253]
We have seen that Jesus was arrested in Gethsemane about midnight and
that His first ecclesiastical trial took place between two and three
o'clock in the morning.[254] St. Luke tells us that there was a daybreak
meeting,[255] which was evidently intended to give a semblance of
legality and regularity to that rule of Hebrew law that required two
trials of the case.
The exact time of the beginning of the night session of the Sanhedrin is
not known. It is generally supposed that the arrest took place in the
garden between midnight and one o'clock. The journey to the house of
Annas must have required some little time. Where this house was located
nobody knows. According to one tradition Annas owned a house on the
Mount of Olives close to the booths or bazaars under the "Two Cedars."
Stapfer believes that Jesus was taken to that place. According to
another tradition the house of Annas was located on the "Hill of Evil
Counsel." Barclay believes that this was the place to which Jesus was
conducted. But the tradition which is most generally accepted is that
which places the palace of Annas on Mount Zion near the palace of
Caiaphas. It is believed by many that these two men, who were related,
Annas being the father-in-law of Caiaphas, occupied different apartments
in the same place. But these questions are mere matters of conjecture
and have no real bearing upon the present discussion, except to show, in
a general way, the length of time probably required to conduct Jesus
from Gethsemane to Annas; from Annas to Caiaphas, if the latter was the
one who privately examined Jesus; and thence to the meeting of the
Sanhedrin. It is reasonable to suppose that at least two hours were thus
consumed, which would bring Jesus to the palace of Caiaphas between two
and three o'clock, if the arrest in the garden took place between twelve
and one o'clock. But here, again, a difference of one or two hours would
not affect the merit of the proposition stated in Point IV. For it is
beyond dispute that the first trial before the Sanhedrin was had at
night, which was forbidden by law.
The question has been frequently asked: Why did the Sanhedrin meet at
night in violation of law? The answer to this is referable to the
treachery of Judas, to the fact that he "sought opportunity to betray
him unto them in the absence of the multitude," and to the thought of
the Master: "But this is your hour, and the power of God." Luke tells us
that the members of the Sanhedrin "feared the people."[256] Mark informs
us that they had resolved not to attempt the arrest and execution of
Jesus at the time of the Passover, "lest there be an uproar of the
people."[257]
Jesus had taught daily in the Temple, and had furnished ample
opportunity for a legal arrest with a view to a legal trial. But His
enemies did not desire this. "The chief priests and scribes sought how
they might take him by craft, and put him to death."[258] The arrival of
Judas from the scene of the Last Supper with a proposition of immediate
betrayal of the Christ was a glad surprise to Caiaphas and his friends.
Immediate and decisive action was necessary. Not only the arrest but the
trial and execution of Jesus must be accomplished with secrecy and
dispatch. The greatest festival of the Jews had just commenced. Pilgrims
to the feast were arriving from all parts of the Jewish kingdom. The
friends and followers of Jesus were among them. His enemies had
witnessed the remarkable demonstration in His honor which marked His
entrance into Jerusalem only a few days before. It is not strange, then,
that they "feared the people" in the matter of the summary and illegal
proceedings which they had resolved to institute against Him. They knew
that the daylight trial, under proper legal forms, with the friends of
Jesus as witnesses, would upset their plans by resulting in His
acquittal. They resolved, therefore, to act at once, even at the expense
of all forms of justice. And it will be seen that this determination to
arrest and try Jesus at night, in violation of law, became the parent of
nearly every legal outrage that was committed against Him. The selection
of the midnight hour for such a purpose resulted not merely in a
technical infraction of law, but rendered it impossible to do justice
either formally or substantially under rules of Hebrew criminal
procedure.
POINT V
THE PROCEEDINGS OF THE SANHEDRIN AGAINST JESUS WERE ILLEGAL BECAUSE THE
COURT CONVENED BEFORE THE OFFERING OF THE MORNING SACRIFICE
LAW
"The Sanhedrin sat from the close of the morning sacrifice to the
time of the evening sacrifice."--TALMUD, Jerus., Sanhedrin I. fol.
19.
"No session of the court could take place before the offering of the
morning sacrifice."--MM. LÉMANN, "Jesus Before the Sanhedrin," p.
109.
"Since the morning sacrifice was offered at the dawn of day, it was
hardly possible for the Sanhedrin to assemble until the hour after
that time."--MISHNA, "Tamid, or of the Perpetual Sacrifice," C.
III.
FACT AND ARGUMENT
THE fact that the Sanhedrin convened before the offering of the morning
sacrifice constitutes the fifth illegality. This error is alleged upon
the authority of MM. Lémann, who, in their admirable little work
entitled "Jesus Before the Sanhedrin," have called attention to it. It
is very difficult, however, to determine whether this was a mere
irregularity, or was what modern jurists would call a material error.
From one point of view it seems to be merely a repetition of the rule
forbidding the Sanhedrin to meet at night. The morning sacrifice was
offered at the break of day and lasted about an hour. A session of the
court before the morning sacrifice would, therefore, have been a meeting
at night, which would have been an infringement of the law. But this was
probably not the real reason of the rule. Its true meaning is doubtless
to be found in the close connection that existed between the Hebrew law
and the Hebrew religion. The constitution of the Hebrew Commonwealth was
an emanation of the mind of Jehovah, the Temple in which the court met
was His residence on earth, and the judges who formed the Great
Sanhedrin were the administrators of His will. It is most reasonable,
then, to suppose that an invocation, in sacrifice and prayer, of His
guidance and authority would be the first step in any judicial
proceedings conducted in His name.
It is historically true that a session of the Sanhedrin in the palmiest
days of the Jewish Commonwealth was characterized by all the religious
solemnity of a service in the synagogue or the Temple. It is entirely
probable, therefore, that the morning sacrifice was made by law an
indispensable prerequisite to the assembling of the supreme tribunal of
the Jews for the transaction of any serious business. On any other
supposition the rules of law cited above would have no meaning. We have
reason to believe, then, that the offering of the morning sacrifice was
a condition precedent to the attachment of jurisdiction, and without
jurisdiction the court had no authority to act. That the morning
sacrifice was offered each day, whether the court assembled or not, as a
religious requirement, does not alter the principle of law above
enunciated.
But it may be asked: How do we know that the morning sacrifice was not
offered? The answer is that the whole context of the Scriptures relating
to the trial shows that it could not have been offered. Furthermore, a
simple and specific reason is that the time prescribed by law for
conducting the morning service was between the dawn of day and sunrise.
Then, if the court convened between two and three o'clock in the
morning, it is very certain that the sacrifice had not been offered. It
is true that there was a morning session of the Sanhedrin. But this was
held simply to confirm the action of the night session at which Jesus
had been condemned. In other words, the real trial was at night and was
held before the performance of the religious ceremony, which was, in all
probability, a prerequisite to the attachment of jurisdiction.
POINT VI
THE PROCEEDINGS AGAINST JESUS WERE ILLEGAL BECAUSE THEY WERE CONDUCTED
ON THE DAY PRECEDING A JEWISH SABBATH; ALSO ON THE FIRST DAY OF THE
FEAST OF UNLEAVENED BREAD AND THE EVE OF THE PASSOVER
LAW
"Court must not be held on the Sabbath, or any holy day."--"Betza,
or of the Egg," Chap. V. No. 2.
"They shall not judge on the eve of the Sabbath, nor on that of any
festival."--MISHNA, Sanhedrin IV. 1.
"No court of justice in Israel was permitted to hold sessions on the
Sabbath or any of the seven Biblical holidays. In cases of capital
crime, no trial could be commenced on Friday or the day previous
to any holiday, because it was not lawful either to adjourn such
cases longer than over night, or to continue them on the Sabbath
or holiday."--RABBI WISE, "Martyrdom of Jesus," p. 67.
FACT AND ARGUMENT
NO Hebrew court could lawfully meet on a Sabbath or a feast day, or on a
day preceding a Sabbath or a feast day.
Concerning the Sabbath day provision Maimonides offers the following
reason for the rule: "As it is required to execute the criminal
immediately after the passing of the sentence, it would sometimes happen
that the kindling of a fire would be necessary, as in the case of one
condemned to be burned; and this act would be a violation of the law of
the Sabbath, for it is written 'Ye shall kindle no fire in your
habitations on the Sabbath day.'"[259] (Exodus xxxv. 3.)
Under modern practice, sessions of court may be adjourned from day to
day, or, if need be, from week to week. But under the Hebrew system of
criminal procedure the court could not adjourn for a longer time than a
single night. Its proceedings were, so to speak, continuous until final
judgment. As the law forbade sessions of court on Sabbath and feast
days, it became necessary to provide that courts should not convene on
the day preceding a Sabbath or a feast day, in order to avoid either an
illegal adjournment or an infringement of the rule relating to the
Sabbath and feast days.
Now Jesus was tried by the Sanhedrin on both a feast day and a day
preceding the Sabbath. And, at this point, a clear conception of the
ancient Jewish mode of reckoning time should be had. The Jewish day of
twenty-four hours began at one sunset and ended with the next. But this
interval was not divided into twenty-four parts or hours of equal and
invariable length. Their day proper was an integral part of time and was
reckoned from sunrise to sunset. Their night proper was likewise a
distinct division of time and was measured from sunset to sunrise. An
hour of time, according to modern reckoning, is invariably sixty
minutes. But the ancient Jewish hour was not a fixed measure of time. It
varied in length as each successive day and night varied in theirs at
different seasons of the year. Neither did the Jews begin their days and
nights as we do. Our day of twenty-four hours always begins at midnight.
Their day of twenty-four hours always began at one sunset and ended with
the next.
Now Jesus was tried by the Sanhedrin on the 14th Nisan, according to the
Jewish calendar; or between the evening of Thursday, April 6th, and the
afternoon of Friday, April 7th, A.D. 30, according to our calendar. The
14th Nisan began at sunset on April 6th and lasted until sunset on April
7th. This was a single Jewish day, and within this time Jesus was tried
and executed. According to our calendar, the trial and execution of
Jesus took place on Friday, April 7th. This was the day preceding the
Jewish Sabbath, which came on Saturday, according to our reckoning. And
on a day preceding the Sabbath no Jewish court could lawfully convene.
This is the first error suggested under Point VI.
Again, it is beyond dispute that the Feast of Unleavened Bread had begun
and that the Passover was at hand when Jesus was tried by the
Sanhedrin.[260] This was in violation of a specific provision of Hebrew
law, and constitutes the second error alleged under Point VI.
There seems to be some conflict among the authorities as to whether
Jesus was tried on the first day of the celebration of the feast of the
Passover or on the day preceding. But the question is immaterial from a
legal point of view, as the law forbade a trial either on a feast day or
on the day preceding, for reasons above stated.
This violation of the law relating to the Sabbaths and feast days, like
that relating to night sessions of the Sanhedrin, resulted in still
other errors. It is necessary to mention only one of these at this
point. The proceedings of the Sanhedrin were recorded by two scribes or
clerks. Their records were to be used on the second day of the trial in
reviewing the proceedings of the first. But Hebrew law forbade any
writing on a Sabbath or a holy day. How was it possible, then, to keep a
record of the proceedings, if Jesus was tried on a Sabbath and also on a
feast day, without violating a rule of law? If no minutes of the meeting
were kept, a most glaring irregularity is apparent.
POINT VII
THE TRIAL OF JESUS WAS ILLEGAL BECAUSE IT WAS CONCLUDED WITHIN ONE DAY
LAW
"A criminal case resulting in the acquittal of the accused may
terminate the same day on which the trial began. But if a sentence
of death is to be pronounced, it can not be concluded before the
following day."--MISHNA, Sanhedrin IV. 1.
FACT AND ARGUMENT
CARE and conservatism, precaution and delay, were the characteristic
features of the criminal procedure of the ancient Hebrews. The principal
aphorism of the Pirke Aboth is this: "_Be cautious and slow in
judgment_, send forth many disciples, and _make a fence around the
law._"[261] The length and seriousness of their deliberations in
criminal proceedings of a capital nature were due to their supreme
regard for human life. "Man's life belongs to God, and only according to
the law of God may it be disposed of." "Whosoever preserves one worthy
life is as meritorious as if he had preserved the world." These and
similar maxims guided and controlled Hebrew judges in every capital
trial. Their horror of death as the result of a judicial decree is shown
by the celebrated saying: "The Sanhedrin which so often as once in seven
years condemns a man to death, is a slaughter-house."[262]
To assure due deliberation and reflection in a case where a human life
was at stake, Hebrew law required that the trial should last at least
two days, in case of the conviction of the accused. In case of an
acquittal the trial might terminate within a single day. Before
condemnation could be finally decreed a night had to intervene, during
which time the judges could sleep, fast, meditate, and pray. At the
close of the first day's trial they left the judgment hall and walked
homeward, arm in arm, discussing the merits of the case. At sunset they
began to make calls upon each other, again reviewing among themselves
the facts in evidence. They then retired to their homes for further
meditation. During the intervening night they abstained from eating
heavy food and from drinking wine. They carefully avoided doing anything
that would incapacitate them for correct thinking. On the following day
they returned to the judgment hall and retried the case. The second
trial was in the nature of a review and was intended to detect errors,
if there were any, in the first trial.[263] It was not until the
afternoon of this day that a final decree could be made and that a
capital sentence could follow.
Now the Gospel record very clearly discloses the fact that Jesus was
arrested, tried, and executed within the limits of a single day. Neither
the exact hour of His arrest, nor of His trial, nor of His execution is
known. But it is positively certain that all took place between sunset,
the beginning of Nisan 14, and sunset, the beginning of Nisan 15. This
was the interval of a single Jewish day, Nisan 14. And within such an
interval of time it was illegal to finally condemn a man to death under
Hebrew law. Even Stapfer, who contends that the trial was legal and that
forms of law were generally observed, admits this error. He asserts that
the precipitate conduct of the members of the Sanhedrin was not only
opposed to the spirit of Hebrew conservatism in the matter of criminal
procedure but was a breach of a specific provision of the criminal
code.[264]
It is true that there were two distinct trials: one between 2 and 3
A.M., Friday, April 7th, which is recorded by Matthew[265] and
Mark,[266] and a second about daybreak of the same day, recorded by
Matthew,[267] Mark,[268] and Luke.[269] But both these trials were had
within one day--indeed, within six hours of each other. The judges did
not try the case and then retire to their homes for sleep, prayer, and
meditation until the following day, as the law required. Even if they
had done so, they would not have avoided an illegal procedure, inasmuch
as the trial had been illegally begun on a feast day and the eve of the
Sabbath, and it would have been impossible to avoid the error alleged in
Point VII. For if they had deferred the sentencing and execution of
Jesus until the following day it would still have been illegal, since
the next day was both a Sabbath and a holy day (the Passover).
Several writers who contend that there was a regular trial of Jesus
assert that the morning meeting of the Sanhedrin was intended to give a
semblance of legality and regularity to that rule of Hebrew law which
required at least two trials. But it will readily be seen that this was
a subterfuge and evasion, since both trials were had on the same day,
whereas the law required them to be held on different days.