Chapter XXVII: Part IX: Our Lord’s Resurrection, His Subsequent Appearances, And His (3)

The author of the following little work, M. Dupin, who is one of the most eminent lawyers of the French Bar, immediately called in question the correctness of Mr. Salvador’s opinion, and entered upon an analysis of this portion of his work, with a view to examine its soundness, and the present volume contains the result of that examination, conducted with great legal skill and extensive learning.

It appears, that he had, many years before, in a little work, entitled “_The Free_ Defence of Accused Persons,” published in 1815, taken the same views of this great trial; which, as he observes, has been justly called “the _Passion_ or _Suffering_ of our Saviour; for he did in truth _suffer_, and had not a trial.”

The author’s attention, however, had been withdrawn from this subject for several years, when it was again brought under his notice by the work of Mr. Salvador, a copy of which was sent to him by that writer, with a request that M. Dupin would give some account of it. Accordingly, says the latter, “it is in compliance with _his request_, and not from a spirit of hostility, that I have made this examination of his work;” and he gives ample proof of his good feeling towards Mr. Salvador, with whom, he says, he is personally acquainted and for whose talents he has a great respect.

With this friendly spirit he enters upon his examination; which is conducted with an ability, learning, animation, and interest, that leave nothing to be desired. As an argument, his work is unanswerable,—he has demolished that of his adversary; and, for intense interest, we do not know any publication of the present day to be compared with it.

The introductory _Analysis_ of Mr. Salvador’s chapter on the Administration of Justice according to the Jewish Law will be highly instructive and interesting; and those persons, who have not been accustomed to read the Bible with particular reference to the _Law_, will find many new and striking views of that portion of the Scriptures. They cannot fail to be particularly struck with the extraordinary care taken to secure by law the personal liberty and rights of the citizen.

According to Mr. Salvador’s view, “the fundamental division into _castes_ is the principal basis of the oriental theocracies.” Moses, on the contrary, took for his basis the _unity_ of the people. In his system of legislation the people are every thing; and the author shows us, that every thing, eventually, is done for them, by them, and with them. The tribe of Levi was established, only to supply a secondary want; and that tribe was very far from obtaining all the powers which we are apt to attribute to it; it did not make, nor develope the laws; it did not judge or govern; all its members, even the high priest himself, were subject to the control of the Elders of the nation, or of a Senate legally assembled.

Intimately connected with these rights of the people was the _liberty of speech_; and Mr. Salvador, in his chapter on the _Public Orators and Prophets_, maintains, and in the opinion of M. Dupin, proves clearly, that in no nation was the liberty of speech ever so unlimited, as among the Hebrews. Accordingly he observes—“What an additional difference was this between the Israelites and the Egyptians! Among the latter, the mass of the people did not dare, without incurring the hazard of the most terrible punishment, to utter a word on affairs of state; it was Harpocrates, the god of silence with his finger on his closed lips, who was their God; in Israel, it was _the right of speech_.”

But we forbear any further reflections, and submit this remarkable performance to our readers. Those, who are familiar with the animated tone of French writers, will perhaps discover in this translation some loss of the fire and intensity of the original; but the translator’s purpose will be effected, if his version shall be found to be a faithful one.

September 3, 1839.

Analysis Of The Chapter Of Mr. Salvador, Entitled “The Administration Of Justice” Among The Jews.(398)

Mr. Salvador has discussed with particular care whatever relates to the _administration of justice_ among the Jewish people. We shall dwell upon this chapter, which undoubtedly will most interest our readers.

_Judicare_ and _judicari_, to judge and to be judged, express the rights of every Hebrew citizen; that is, no one could be condemned without a judgment, and every one might, in his turn, be called upon to sit in judgment upon others. Some exceptions to this principle are explained; but they do not affect the rule. In matters of mere interest each party chose a judge, and these two chose a third person. If a discussion arose as to _the interpretation of a law_, they carried it to the lower council of Elders, and from thence to the Great council at Jerusalem. Each town of more than one hundred and twenty families was to have its lower council, consisting of twenty-three members; and these had jurisdiction in criminal cases.

The expressions, _he shall die, he shall be cut off from the people_, which are so often used in the Mosaic law, embrace three very different significations, which we are accustomed to confound. They indicate the suffering of death as a punishment, civil death, and that premature death, with which an individual is naturally threatened, who departs from those rules which are useful to the nation and to the individual himself. Civil death is the last degree of _separation_, or _excommunication_; it is pronounced, as a judicial punishment, by the assembly of the judges.

There were three kinds of separation; which Mr. Salvador compares to the three degrees of civil excommunication provided for in the French Penal Code, and which condemn the criminal to hard labour either for life or for a term of years, or to certain correctional punishments. But the Hebrew excommunication had this advantage, that the party _never lost all hope of regaining his original standing_.

The Hebrew lawyers, in relation to the punishment of death, maintained opinions, which deserve to be quoted:—

“A tribunal, which condemns to death _once in seven years_, may be called _sanguinary_.”—“It deserves this appellation, says doctor Eliezer, when it pronounces a like sentence once in seventy years.”—“If we had been members of the high court, say the doctors Tyrphon and Akiba, we should never have condemned a man to death.” Simeon, the son of Gamaliel, replied—“Would not that be an abuse? Would you not have been afraid of multiplying crimes in Israel?” Mr. Salvador answers—“No, certainly; far from lessening their number, the severity of the punishment increases it, by giving a more resolute character to the men who are able to brave it; and, at the present day, how many intelligent minds range themselves on the side of Akiba and Tyrphon! How many consciences refuse to participate, in any manner, in the death of a man! The flowing of blood, the multitude excited by an unbecoming curiosity, the victim dragged in triumph to the horrible altar, the impossibility of repairing a mistake, (from which human wisdom is never exempt), the dread of one day seeing a departed shade rising up and saying, ‘_I was innocent_,’ the facility which modern nations have of expelling from among them the man whose presence pollutes them—the influence of general depravity on the production of crimes—and finally the absurd contrast of the whole of society, while in possession of strength, intelligence, and arms, opposing itself to an individual wretch (who has been drawn on by want, by passion, or by ignorance) and yet finding no other means of redress than by exceeding him in cruelty—all these things, and many others, have so deeply penetrated the minds of all ranks of people, that there will one day proceed from them the most striking proof of the power of morals over the laws; for the law will be changed by the simple fact, that we shall not find any person who will consent to apply it.”

I feel honoured in having maintained the same opinion in my _Observations on Criminal Legislation_; but I solicit those, who wish to see this question discussed in its whole extent, to read the profound reflections which the Duke de Broglie has just published on the subject, in the last number of the _Revue Française_ (for October, 1828.)

The whole criminal procedure in the Pentateuch rests upon three principles, which may be thus expressed; publicity of the trial, entire liberty of defence allowed to the accused; and a guaranty against the dangers of testimony. According to the Hebrew text _one_ witness is no witness; there must be at least two or three who know the fact. The witness, who testifies against a man, must swear that he speaks the truth; the judges then proceed to take exact information of the matter; and, if it is found that the witness has sworn falsely, they compel him to undergo the punishment to which he would have exposed his neighbour. The discussion between the accuser and the accused is conducted before the whole assembly of the people. When a man is condemned to death, those witnesses whose evidence decided the sentence inflict the first blows, in order to add the last degree of certainty to their evidence. Hence the expression—_Let him among you, who is without sin, cast the first stone_.

If we pursue their application of these fundamental rules in practice, we shall find that a trial proceeded in the following manner.

On the day of the trial, the executive officers of justice caused the accused person to make his appearance. At the feet of the Elders were placed men who, under the name of _auditors_, or _candidates_, followed regularly the sittings of the Council. The papers in the case were read; and the witnesses were called in succession. The president addressed this exhortation to each of them: “It is not conjectures, or whatever public rumour has brought to thee, that we ask of thee; consider that a great responsibility rests upon thee: that we are not occupied by an affair, like a case of pecuniary interest, in which the injury may be repaired. If thou causest the condemnation of a person unjustly accused, his blood, and the blood of all the posterity of him, of whom thou wilt have deprived the earth, will fall upon thee; God will demand of thee an account, as he demanded of Cain an account of the blood of Abel. Speak.”

A woman could not be a witness, because she would not have the courage to give the first blow to the condemned person; nor could a child, that is irresponsible, nor a slave, nor a man of bad character, nor one whose infirmities prevent the full enjoyment of his physical and moral faculties. _The simple confession of an individual against himself_, or the declaration of a prophet, however renowned, would not decide a condemnation. The Doctors say—“We hold it as fundamental, that _no one shall prejudice himself_. If a man accuses himself before a tribunal, we must not believe him, unless the fact is attested by two other witnesses; and it is proper to remark, that the punishment of death inflicted upon Achan, in the time of Joshua(399) was an exception, occasioned by the nature of the circumstances; for our law does not condemn upon the simple confession of the accused, nor upon the declaration of one prophet alone.”

The witnesses were to attest to the identity of the party, and to depose to the month, day, hour, and circumstances of the crime. After an examination of the proofs, those judges who believed the party innocent stated their reasons; those who believed him guilty spoke afterwards, and _with the greatest moderation_. If one of the _auditors_, or _candidates_, was entrusted by the accused with his defence, or if he wished in his own name to present any elucidations in favour of innocence, he was admitted to the seat, from which he addressed the judges and the people. But this liberty was not granted to him, if his opinion was in favour of condemning. Lastly; when the accused person himself wished to speak, they gave the most profound attention. When the discussion was finished, one of the judges recapitulated the case; they removed all the spectators; two scribes took down the votes of the judges; one of them noted those which were in favour of the accused, and the other, those which condemned him. Eleven votes, out of twenty-three, were sufficient to acquit; but it required thirteen to convict. If any of the judges stated that they were not sufficiently informed, there were added two more Elders, and then two others in succession, till they formed a council of sixty-two, which was the number of the Grand Council. If a majority of votes acquitted, the accused was discharged _instantly_; if he was to be punished, the judges postponed pronouncing sentence till the third day; during the intermediate day they could not be occupied with anything but the cause, and they abstained from eating freely, and from wine, liquors, and everything which might render their minds less capable of reflection.

On the morning of the third day they returned to the judgment seat. Each judge, who had not changed his opinion, said, _I continue of the same opinion and condemn_; any one, who at first condemned, might at this sitting acquit; but he who had once acquitted was not allowed to condemn. If a majority condemned, two _magistrates_ immediately accompanied the condemned person to the place of punishment. The Elders did not descend from their seats; they placed at the entrance of the judgment hall an officer of justice with a small flag in his hand; a second officer, on horseback, followed the prisoner, and constantly kept looking back to the place of departure. During this interval, if any person came to announce to the Elders any new evidence favourable to the prisoner, the first officer waved his flag, and the second one, as soon as he perceived it, brought back the prisoner. If the prisoner declared to the _magistrates_, that he recollected some reasons which had escaped him, they brought him before the _judges_ no less than five times. If no incident occurred, the procession advanced slowly, preceded by a herald who, in a loud voice, addressed the people thus: “This man (stating his name and surname) is led to punishment for such a crime; the witnesses who have sworn against him are such and such persons; if any one has evidence to give in his favour, let him come forth quickly.”

It was in consequence of this rule that the youthful Daniel caused the procession to go back, which was leading Susanna to punishment, and he himself ascended the seat of justice to put some new questions to the witnesses.

At some distance from the place of punishment, they urged the prisoner to confess his crime, and they made him drink a stupefying beverage, in order to render the approach of death less terrible.(400)

By this mere analysis of a part of Mr. Salvador’s work we may judge of the extreme interest of the whole. His principal object has been, to make apparent the mutual aids which history, philosophy, and legislation afford in explaining the institutions of the Jewish people. His book is a scientific work, and at the same time a work of taste. His notes indicate vast reading; and in the choice of his citations he gives proofs of his critical skill and discrimination. Mr. Salvador belongs, by his age, to that new generation, which is distinguished as much by its application to solid studies, as by elevation and generosity of sentiment.

Trial Of Jesus.

Refutation Of The Chapter Of Mr. Salvador, Entitled “The Trial And
Condemnation Of Jesus.”

“The chapter, in which Mr. Salvador treats of _the Administration of Justice among the Hebrews_, is altogether theoretical. He makes an exposition of the law—that things, in order to be _conformable to rule_, must be transacted in a certain mode. In all this I have not contradicted him, but have let him speak for himself.

In the subsequent chapter the author announces: “That according to this _exposition of judicial proceedings_ he is going to follow out the application of them to the most memorable trial in all history, that of Jesus Christ.” Accordingly the chapter is entitled: _The Trial and Condemnation of Jesus_.

The author first takes care to inform us under what point of view he intends to give an account of that accusation: “That we ought to lament the blindness of the Hebrews for not having recognised a God in Jesus, is a point which I do not examine.” (There is another thing also, which he says he shall not examine.) “But, when they discovered in him _only a citizen_, did they try him _according to existing laws and formalities_?”

The question being thus stated, Mr. Salvador goes over all the various aspects of the accusation; and his conclusion is, that the procedure was perfectly regular, and the condemnation perfectly appropriate to the act committed. “Now,” says he, (p. 87,) “the Senate, having adjudged that Jesus, the son of Joseph, born in Bethlehem, had profaned the name of God by usurping it himself, though a simple citizen, applied to him the law against blasphemy, the law in the 13th chapter of Deuteronomy, and verse 20, chapter 18th, conformably to which every prophet, even one that performs miracles, is to be punished when he speaks of a God unknown to the Hebrews or their fathers.”

This conclusion is formed to please the followers of the Jewish law; it is wholly for their benefit, and the evident object is, to justify them from the reproach of _deïcide_.

We will, however, avoid treating this grave subject in a theological point of view. As to myself, Jesus Christ is the _Man-God_; but it is not with arguments drawn from my religion and my creed, that I intend to combat the statement and the conclusion of Mr. Salvador. The present age would charge me with being intolerant; and this is a reproach which I will never incur. Besides, I do not wish to give to the enemies of Christianity the advantage of making the outcry, that we are afraid to enter into a discussion with them, and that we wish to crush rather than to convince them. Having thus contented myself with declaring my own faith, as Mr. Salvador has let us clearly understand his, I shall also examine the question under a merely _human_ point of view, and proceed to inquire, with him, “Whether Jesus Christ, considered _as a simple citizen_, was tried according to the existing laws and formalities.”

The catholic religion itself warrants me in this; it is not a mere fiction; for God willed, that Jesus should be clothed in the forms of humanity (_et homo factus est_), and that he should undergo the lot and sufferings of humanity. The _son of God_, as to his moral state and his holy spirit, he was also, in reality, the _Son of Man_, for the purpose of accomplishing the mission which he came upon earth to fulfil.

This being the state of the question, then, I enter upon my subject; and I do not hesitate to affirm, because I will prove it, that, upon examining all the circumstances of this great trial, we shall be very far from discovering in it the application of those legal maxims, which are the safeguard of the rights of accused persons, and of which Mr. Salvador, in his chapter _On the Administration of Justice_, has made a seductive exposition.

The accusation of Jesus, instigated by the hatred of the priests and the Pharisees, and presented at first as a charge of _sacrilege_, but afterwards converted into a _political_ crime and _an offence against the state_, was marked, in all its aspects, with the foulest acts of violence and perfidy. It was not so much _a trial_ environed with legal forms, as a real _passion_, or prolonged suffering, in which the imperturbable gentleness of the victim displays more strongly the unrelenting ferocity of his persecutors.

When Jesus appeared among the Jews, that people was but the shadow of itself. Broken down by more than one subjugation, divided by factions and irreconcilable sects, they had in the last resort been obliged to succumb to the Roman power and surrender their own sovereignty. Jerusalem, having become a mere appendage to the province of Syria, saw within its walls an imperial garrison; Pilate commanded there, in the name of Cæsar; and the late people of God were groaning under the double tyranny of a conqueror, whose power they abhorred and whose idolatry they detested, and of a priesthood that exerted itself to keep them under the rigorous bonds of a religious fanaticism.

Jesus Christ deplored the misfortunes of his country. How often did he weep for Jerusalem! Read in Bossuet’s _Politics drawn from the Holy Scriptures_, the admirable chapter entitled, _Jesus Christ the good citizen_. He recommended to his countrymen _union_, which constitutes the strength of states. “O Jerusalem, Jerusalem, (said he,) thou that killest the prophets and stonest them which are sent unto thee, how often would I have gathered thy children together, even as a hen gathereth her chickens under her wings, and ye would not!”

He was supposed to be not favorable to the Romans; but he only loved his own countrymen more. Witness the address of the Jews, who, in order to induce him to restore to the centurion a sick servant that was dear to him, used as the most powerful argument these words—that he was worthy for whom he should do this, for he loveth our nation. And Jesus went with them. Luke vii. 4, 5.

Touched with the distresses of the nation, Jesus comforted them by holding up to them the hope of another life; he alarmed the great, the rich, and the haughty, by the prospect of a final judgment, at which every man would be judged not according to his rank, but his works. He was desirous of again bringing back man to his original dignity; he spoke to him of his _duties_, but at the same time of his _rights_. The people heard him with avidity, and followed him with eagerness; his words affected them; his hand healed their diseases, and his moral teaching instructed them; he preached, and practised one virtue till then unknown, and which belongs to him alone—_charity_. This celebrity, however, and these wonders excited envy. The partisans of the _ancient theocracy_ were alarmed at the _new doctrine_; the chief priests felt that their power was threatened; the pride of the Pharisees was humbled; the scribes came in as their auxiliaries, and the destruction of Jesus was resolved upon.

Now, if his conduct was reprehensible, if it afforded grounds for a _legal accusation_, why was not that course taken openly? Why not try him for the acts committed by him, and for his public discourses? Why employ against him subterfuges, artifice, perfidy, and violence? for such was the mode of proceeding against Jesus.

Let us now take up the subject, and look at the narratives which have come down to us. Let us, with Mr. Salvador, open the books of the Gospels; for he does not object to that testimony; nay, he relies upon it: “It is by the Gospels themselves,” says he, “that I shall establish _all the facts_.”

In truth, how can we (except by contrary evidence, of which there is none) refuse to place confidence in an historian, who tells us, as Saint John does, with affecting simplicity: “He that saw it bare record, and his record is true, and he knoweth that he saith true, that ye might believe.” John xix. 35.