Chapter XVI: Part III: The Brief (3)

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.

POINT VIII

THE SENTENCE OF CONDEMNATION PRONOUNCED AGAINST JESUS BY THE SANHEDRIN WAS ILLEGAL BECAUSE IT WAS FOUNDED UPON HIS UNCORROBORATED CONFESSION

LAW

"We have it as a fundamental principle of our jurisprudence that no
one can bring an accusation against himself. Should a man make
confession of guilt before a legally constituted tribunal, such
confession is not to be used against him unless properly attested
by two other witnesses."--MAIMONIDES, Sanhedrin IV. 2.

"Not only is self-condemnation never extorted from the defendant by
means of torture, but no attempt is ever made to lead him on to
self-incrimination. Moreover, a voluntary confession on his part
is not admitted in evidence, and therefore not competent to
convict him, unless a legal number of witnesses minutely
corroborate his self-accusation."--MENDELSOHN, "Criminal
Jurisprudence of the Ancient Hebrews," p. 133.

FACT AND ARGUMENT

MORE than one system of jurisprudence has refused to permit a conviction for crime to rest upon an uncorroborated confession. But it remained for the ancient Hebrews to discover the peculiar reason for the rule, that the witness who confessed was "his own relative"; and relatives were not competent witnesses under Hebrew law. Modern Jewish writers, however, have assigned other reasons for the rule. Rabbi Wise says: "Self-accusation in cases of capital crime was worthless. For if not guilty he accuses himself of a falsehood; if guilty he is a wicked man, and no wicked man, according to Hebrew law, is permitted to testify, especially not in penal cases."[270] Mendelsohn says that "the reason assigned for this enactment is the wish to avoid the possibility of permitting judicial homicide on self-accusing lunatics, or on persons who, in desperation, wish to cut short their earthly existence, and to effect this falsely accuse themselves of some capital crime."[271]

Modern jurists have assigned still other reasons for the rule as it has existed in modern law.[272] Men have been known to confess that they were guilty of one crime to avoid punishment for another. Morbid and vulgar sentimentality, such as love of newspaper notoriety, have induced persons of inferior intelligence, who were innocent, to assume responsibility for criminal acts.

But whatever the reason of the rule, Jesus was condemned to death upon His uncorroborated confession, in violation of Hebrew law.

"For many bare false witness against him, but their witness agreed not together. 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. But neither so did their witness agree together. And the high priest stood up in the midst, and asked Jesus, saying, Answerest thou nothing? what is it which these witness against thee? But he held his peace, and answered nothing. Again the high priest asked him, and said unto him, Art thou the Christ, the Son of the Blessed? And Jesus said, I am: and ye shall 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, 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. And some began to spit on him, and to cover his face, and to buffet him, and to say unto him, Prophesy."[273]

It will be seen from a perusal of this report of the trial that it was sought to condemn Jesus first on the charge of sedition, that is, that He had threatened the destruction of the Temple and thereby endeavored to seduce the people from their national allegiance. "But their witness agreed not together"; and under Hebrew law they were required to reject contradictory testimony and discharge the prisoner, if the state was unable to prove its case. This is what should have been done at this point in the trial of Jesus. But, instead, the judges, in their total disregard at law, turned to the accused and said: "Answerest thou nothing? what is it which these witness against thee?" "But he held his peace, and answered nothing." By remaining silent, Jesus only exercised the ordinary privilege of a Jewish prisoner to refuse to incriminate himself. The modern rule that the accused cannot be made to testify against himself, unless he first voluntarily takes the witness stand in his own behalf, was substantially true among the ancient Hebrews. But here we find Caiaphas insisting that Jesus incriminate Himself. And he continues to insist in the matter of the second charge, that of blasphemy. "And the high priest asked him, and said unto him, Art thou the Christ, the Son of the Blessed?" That question was illegal, because it involved an irregular mode of criminal procedure, and because it asked for a confession of guilt to be made the basis of a conviction. The false witnesses had failed to agree and had evidently been rejected and dismissed. The judges were then without witnesses to formulate a charge and furnish proof of its truth. They were thus forced to the despicable and illegal method of asking the accused to condemn Himself, when they knew that no confession could be made the basis of a conviction. They were also guilty of the illegality of formulating a charge without witnesses. We have seen that only leading witnesses could present an indictment, but here the judges became the accusers, in violation of law.

In answer to the high priest's question, Jesus, feeling that He could not afford at such an hour and in such a place to longer conceal His Messiahship, answered boldly and emphatically: "I am."[274] "And they all condemned him to be guilty of death." It will thus be seen that upon His own confession and not upon the testimony of at least two competent witnesses agreeing in all essential details, as the law required, was the Nazarene condemned to death.

If it be argued, as it has been, that the two charges of threatening to destroy the Temple and of pretending to be the "Christ, the Son of God," were in fact but different phases of the same charge of blasphemy, and that the two witnesses were the corroborators of the confession of Jesus, then reply must be made that the witnesses were not competent, being false witnesses, nor was their testimony legally corroborated, because it was false and contradictory.

Again, it was the rule of Hebrew law that both witnesses had to testify to all the essential elements of a complete crime. One could not furnish one link, and another another link, in order to construct a chain of evidence. Each had to testify to all the essential elements necessary to constitute the legal definition of a crime. But the false witnesses did not do this. Under any view of the case, then, the testimony of these witnesses was wholly worthless, and the confession of Jesus was the solitary and illegal basis of His conviction.

The failure of the Sanhedrin to secure sufficient and competent evidence to convict Jesus must not be regarded as accidental, or as attributable to the hour and to the surroundings. The popularity of the Nazarene, outside the narrow circle of the Temple authorities, was immense. The friendship of Nicodemus and Joseph of Arimathea is proof that He had standing even in the Sanhedrin itself. It was therefore difficult to find witnesses who were willing to testify against Him. Besides, the acts of His ministry, while in no sense cowardly or hypocritical, had been, in general, very cautious and diplomatic. He seems to have retired, at times, into the desert or the wilderness to avoid disagreeable and even dangerous complications with the civil and ecclesiastical authorities.[275] Jesus was in no sense a politician, but He was not lacking in mother wit and practical resources. He saw through the designs of Herod Antipas, who wished to get Him out of his dominions. It will be remembered that certain Pharisees, pretending friendship for Him, warned Him to flee from Galilee to avoid being killed by Herod. The courage and manliness of Jesus are shown by the fact that He remained in His native province, and even sent a contemptuous message to the Tetrarch, whom He styled "that fox."[276]

At other times, Christ was compelled to defend Himself against the swarm of spies that hovered over His pathway through Samaria, along the Jordan, and around the Sea of Galilee. In His discussions with His enemies who sought to entrap Him, He displayed consummate skill in debate. His pithy sayings and incomparable illustrations usually left His questioners defenseless and chagrined. Oftentimes in these encounters He proclaimed eternal and universal truths which other nations and later ages were to develop and enjoy. When, holding in His hand a penny with Cæsar's image upon it, He said, "Render therefore unto Cæsar the things which are Cæsar's, and unto God the things that are God's," he foretold and stamped with approval the immortal principle that was to be embodied in the American constitution and to remain the cornerstone of the American Commonwealth; a truth repeated by Roger Williams when in the forests of Rhode Island he declared that the magistrate should rule in civil matters only and that man was answerable for his religious faith to God alone. This declaration of the Nazarene is the spiritual and intellectual basis of the sublime doctrine of civil liberty and religious freedom that finds its highest expression in that separation of the Church and State which enables men of different creeds and different parties to live side by side as patriots and religionists and as comrades, though antagonists.

The replies of Jesus to those who came to "entangle him in his talk" usually left them disconcerted and defeated, and little disposed to renew their attacks upon Him.[277] The efforts of the Pharisees to entrap Him seem to have resulted in failure everywhere and at all times. And at the trial the Sanhedrin found itself in possession of a prisoner but with no competent evidence to establish His guilt. It was least of all prepared to convict Him of the crime of blasphemy as founded upon the claim of Messiahship, for Jesus had been exceedingly cautious, during His ministry, in declaring Himself to be the Messiah. Except in the presence of the woman of Samaria, who came to draw water from the well, there is no recorded instance of an avowal of His Messiahship outside the immediate circle of the disciples.[278] He forbade the devils whom He had cast out, and that recognized Him, to proclaim His Messiahship.[279] When the Jews said to Him, "How long dost thou make us doubt? if thou be the Christ, tell us plainly," Jesus simply referred them to His works, and made no further answer that could be used as testimony against Him.[280] He revealed Himself to His followers as the Messiah, and permitted them to confess Him as such, but forbade them to make the matter public. "Then charged he his disciples that they should tell no man that he was Jesus, the Christ."[281]

It will thus be seen that probably no two witnesses who were legally competent to testify could have been secured to condemn Jesus upon the charge preferred at the trial. In their desperation, then, the members of the Sanhedrin were compelled to employ false testimony and a confession which was equally illegal.

POINT IX

THE CONDEMNATION OF JESUS WAS ILLEGAL BECAUSE THE VERDICT OF THE SANHEDRIN WAS UNANIMOUS

LAW

"A simultaneous and unanimous verdict of guilt rendered on the day
of the trial has the effect of an acquittal."--MENDELSOHN,
"Criminal Jurisprudence of the Ancient Hebrews," p. 141.

"If none of the judges defend the culprit, i.e., all pronounce him
guilty, having no defender in the court, the verdict of guilty was
invalid and the sentence of death could not be executed."--RABBI
WISE, "Martyrdom of Jesus," p. 74.

FACT AND ARGUMENT

FEW stranger rules can be found in the jurisprudence of the world than that provision of Hebrew law which forbade a conviction to rest upon the unanimous vote of the judges. A comparison instantaneously and almost inevitably arises in the mind between the Saxon and Hebrew requirement in the matter of unanimity in the verdict. The finest form of mind of antiquity, with the possible exception of the Greek and Roman, was the Hebrew. One of the finest types of intellect of the modern world is that of the Anglo-Saxon. The Hebrew organized the Sanhedrin, and, under God, endowed it with judicial and spiritual attributes. The Anglo-Saxon, on the shores of the German Ocean, originated the modern jury and invested it with its distinctive legal traits. With the Anglo-Saxon jury a unanimous verdict is necessary to convict, but with the Hebrew Sanhedrin unanimity was fatal, and resulted in an acquittal. A great modern writer[282] has declared that law is the perfection of reason. But when we contemplate the differences in Hebrew and Saxon laws we are inclined to ask, in seeking the degree of perfection, whose law and whose reason?

But, after all, the Jewish rule is not so unreasonable as it first appears, when we come to consider the reason of its origin. In the first place, as we have seen in Part II, there were no lawyers or advocates, in the modern sense, among the ancient Hebrews. The judges were his defenders. Now if the verdict was unanimous in favor of condemnation it was evident that the prisoner had had no friend or defender in court. To the Jewish mind this was almost equivalent to mob violence. It argued conspiracy, at least. The element of mercy, which was required to enter into every Hebrew verdict, was absent in such a case.

Again, this rule of unanimity was only another form or statement of the requirement that the court defer final action, in case of conviction, to the next day in order that time for deliberation and reflection might intervene. In other words, Hebrew law forbade precipitancy in capital proceedings. And what could be more precipitate than an instantaneous and unanimous verdict? "But where all suddenly agree on conviction, does it not seem," asks a modern Jewish writer, "that the convict is a victim of conspiracy and that the verdict is not the result of sober reason and calm deliberation?"

But how did they convict under Hebrew law? By a majority vote of at least two. A majority of one would acquit. A majority of two, or any majority less than unanimity, would convict.[283] If the accused had one friend in court, the verdict of condemnation would stand, since the element of mercy was present and the spirit of conspiracy or mob violence was absent. Seventy-one constituted the membership of the Great Sanhedrin. If all the members were present and voted, at least thirty-seven were required to convict. Thirty-six would acquit. If a bare quorum, twenty-three members, was present, at least thirteen were required to convict. Twelve would acquit.

This rule seems ridiculous and absurd, when viewed in the light of a brutal and undeniable crime. If the facts constituting such a crime had been proved against a Jewish prisoner beyond any possibility of doubt, if such facts were apparent to everybody, still it seems that the rule above stated required that the defendant have at least one advocate and one vote among the judges; else, the verdict was invalid and could not stand. Such a procedure could be justified on no other ground than that exceptional cases should not be permitted to destroy a rule of action that in its general operation had been found to be both generous and just.

Now the condemnation of Jesus was illegal because the verdict of the Sanhedrin was unanimous. We learn this from Mark, who says: "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."[284] If they _all_ condemned Him, the verdict was unanimous and therefore illegal. The other Evangelists do not tell us that the verdict was unanimous; neither do they deny it. Mark's testimony stands alone and uncontradicted; therefore we must assume that it is true.

Rabbi Wise[285] and Signor Rosadi[286] call attention to the fact that the verdict was unanimous. The former seeks to ridicule Mark as an authority because a unanimous verdict was illegal under Hebrew law, and the distinguished Hebrew writer does not conceive that Hebrew judges could have made such a mistake. Such argument, reduced to ultimate analysis, means, according to Rabbi Wise, that there were certain rules of Hebrew law that could not be and were never violated.

In this connection, it has been frequently asked: Was the entire Sanhedrin present at the night trial of Jesus? Were Nicodemus and Joseph of Arimathea present? If they were present, did they vote against Jesus? These questions can be answered only in the light of the authorities. Only two of the Gospel writers, Matthew and Mark, tell us of the night trial. Both declare that "all the council" were present.[287] The "council" (concilium) is the Vulgate, the Latin New Testament designation of the Great Sanhedrin. Then, if all the "council" were present, the Great Sanhedrin were all present.