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 p.r.o.nounced 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 pa.s.sing unmerciful judgment upon the members of that court for denying the claims of Jesus to identify with G.o.d, when His own disciples evidently failed to recognize them. The incidents of the Last Supper clearly prove that those who had been intimately a.s.sociated 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 G.o.d, 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 emba.s.sy 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 ill.u.s.trate to the reader how futile would be the task of attempting in a treatise of this kind to settle the question of the ident.i.ty of Jesus with G.o.d, 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 G.o.d, or man-G.o.d, we are justified in pa.s.sing upon the question of the violation of forms of law which He was ent.i.tled 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 G.o.d 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 ident.i.ty with G.o.d 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," a.s.serts 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 const.i.tution 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 inst.i.tuted 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 "nave impudence," to a.s.sert 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 a.n.a.lysis 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 a.s.sume 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 Caphe 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, "G.o.d 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 a.s.sembled 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 G.o.d, 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 superst.i.tious 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 ill.u.s.tration 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 Lebbaeus 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 Pa.s.sover 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 mult.i.tude. "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 pa.s.sion. "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 ill.u.s.trated. 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 pa.s.sionate, 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 b.l.o.o.d.y 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 const.i.tutes 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 Pa.s.sover, 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 G.o.d 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?